False premise of gun sentences
By Franklin E. Zimring October 15, 2013 5:58PM
Updated: November 17, 2013 6:17AM
Jens Ludwig, director of the University of Chicago’s Crime Lab, is a superb scholar of violence and a talented economist, but his just released analysis of gun penalties tells me he desperately needs a course in criminal justice, Illinois style.
Ludwig’s memo, widely cited by politicians who favor a mandatory three-year prison sentence for people convicted of the illegal use of a weapon, makes three assumptions about Illinois law and practice that are provably not true:
♦ Penalties on the books for carrying a firearm unlawfully are too lenient.
♦ Everybody who carries a gun on Chicago’s streets deserves three years in prison.
♦ Mandatory minimum sentencing legislation will eliminate discretion in Cook County criminal justice.
The current penalties on the books in Illinois carry maximum penalties that range from three to 14 years for persons convicted of carrying loaded guns, with the higher ranges imposed on persons who have criminal records or prior gun involvement. So three-year prison terms are available to everybody convicted, and Professor Ludwig himself tells us that more than 80 percent of those convicted do go to prison (75 percent) or “boot camp” confinement.
These are prison sentences for carrying a gun, not discharging it, and that rate is extremely high.
One consequence of that high punishment baseline is a rather small potential for an increase in the certainty of punishment if Illinois required a mandatory minimum sentence of at least three years. The Massachusetts and Pittsburgh results that Ludwig mentions began with baselines much lower and therefore saw much bigger jumps in levels of punishment than are possible in Chicago. The number of studies of the effects of trying to add on to such high imprisonment levels for carrying a gun is zero.
So any deterrence in Chicago is wishful thinking.
Does everybody deserve
three years in prison?
The test question for judging whether a new layer of imprisonment would serve justice in Illinois is whether every single citizen who carries a loaded gun on his person or in her purse deserves three years of imprisonment, and the answer to that question is clearly no. The offense is carrying a gun, not shooting or trying to commit a robbery.
Some people carry guns because they live in dangerous places and fear crime. They are violating the law, but if there is no record of criminality or violence, a prison cell is both inefficient and unjust.
Professor Ludwig tells us that 7 percent of people on probation for carrying a gun are later arrested for a violent crime. That means 93 percent of the people on probation were not arrested for violence. And his study does not compare these statistics to other felony probation outcomes.
But don’t take my word for it that the backgrounds and motives of people who commit gun-carrying offenses — and their danger to the community — are too varied for a mandatory minimum penalty to be fair and reasonable. Ask the prosecutors in Cook County, who allow and agree to plea bargaining in the vast majority of felony convictions for carrying guns. If these results are what prosecutors consider appropriate, why don’t the prosecutors oppose mandatory minimums?
are not mandatory
That takes us to the third false premise for this mandatory sentencing legislation. The prosecutor is the all-powerful 500-pound gorilla in criminal justice and no mandatory sentencing law will limit the power of prosecutors to do whatever they want. Mandatory penalties constrain only judges, thus making prosecutors more powerful.
But if this proposed legislation is transparently phony, why has it taken center stage in the discussion of Chicago’s very real gun violence problem? Because the city’s gun control laws have been struck down by the federal courts and more careful regulation of gun commerce will take time and effort. The mandatory minimum proposal is a temper tantrum masquerading as an act of government.
Franklin Zimring is the Simon
Professor of Law at the University of California at Berkeley and former director of the Center for Studies in Criminal Justice at the University of Chicago.