The Unintended Consequences of Efforts to Target Gun Violence: Changing the Incentives for Congress and Prosecutors, Shifting the Balance Between Prosecution and Defense

Abstract

This paper explores how legislative attempts to crack down on gun violence have affected the behavior of courts and prosecutors in the federal system, putting pressure on the boundary between federal and state law, as well as the boundaries of the elements defining various federal offenses. Legislative efforts to expand the boundaries of federal criminal jurisdiction to deter and punish gun violence brought Congress to the threshold of a major shift in the federal/state boundary, as Congress came within a hair's breadth of making every crime involving a firearm that had crossed state lines a federal offense. At that point, the Supreme Court responded with its first decision in half a century limiting congressional power under the Commerce Clause, United States v. Lopez. Although the Court also has a broader federalism agenda, this paper argues that Lopez and United States v. Morrison were motivated, to a significant degree, by the Court's institutional concerns about a possible flood of federal gun prosecutions. From the viewpoint of positive political theory, Lopez and Morrison can be understood as the Supreme Court's effort to reshape Commerce Clause doctrine to protect the traditional role and status of the federal courts, and to prevent their transformation into police courts. At the administrative level, gun-related penalties have generated pressure on a different boundary, as federal prosecutors sought expansive interpretations of the elements defining the most commonly prosecuted federal firearm offense, 18 U.S.C. ? 924(c). Section 924(c) provides for super enhanced penalties that are severe, mandatory, and consecutive to all other penalties under federal and state law. This section of the paper explores the question whether prosecutors--like counsel for private plaintiffs in civil RICO treble damage cases-- press for extreme interpretations of the Section 924(c) and seek to bring many marginal cases within its ambit. A review of the litigation under Section 924(c) does seem to reflect a prosecutorial response to the incentive created by super enhanced penalties, including aggressive pursuit of extreme interpretations of various elements of the statute. On the other hand, a review of prosecutorial practices also reveals apparently conflicting trends: federal prosecutors bargain away or decline to bring charges under the enhanced penalties in the majority of cases. Ironically, though the penalties established in Section 924(c) are mandatory, they are imposed in less than one half of the federal cases in which the facts appear to fall within the ambit of 924(c). Thus the effect of enhancing the penalties applicable to gun related crime has been to greatly enlarge the scope of the discretion exercised by federal prosecutors, and the magnitude of the consequences controlled by their discretion, without the development of any additional checks against the abuse of this enhanced discretion.