Project Safe Neighborhoods - Unintended Consequences?

[Mr. James]

Paul Craig Roberts

June 12, 2002

More injustice on the way

In 1999, Edward Tenner published "Why Things Bite Back," a provocative book about the unintended consequences of technology. Someone should write a similar book about law, because the unintended consequences are even more far-reaching.

Gene Healy, a Cato Institute scholar, recently provided a thorough exploration of the unintended
consequences of one law, the new Bush-Ashcroft plan to federalize gun crimes, known as the Project Safe Neighborhoods program. The unintended consequences of this law are frightening.

The law originated in a strategy by the National Rifle Association and the Bush administration to
forestall further anti-gun legislation by emphasizing tougher enforcement of existing gun laws. To this end, the legislation funds 113 new assistant U.S. attorneys and 600 new state and local prosecutors, whose only beat is to prosecute gun crimes. And there lies the unintended consequences.

As Healy rightly notes, one consequence is the over-enforcement of gun laws and a "proliferation
of 'garbage' gun charges -- technical violations of firearms statutes on which no sensible prosecutor would expend his energy."

Conviction rates are the key indicator in judging the performance of U.S. Attorneys' offices.
Unlike other prosecutors, whose bailiwicks cover all criminal offenses, the 713 Safe Neighborhood prosecutors are limited to one offense. Once they run out of serious gun crimes, they push on with technical and meritless indictments.

Meritless convictions were fast in coming. Last January, the Des Moines Register asked: "What
sort of country would put a man in federal prison for 15 years for possessing a single .22 caliber
bullet? Ours would." Dane Yirkovsky, a drug user and sometime burglar, was sentenced as an armed criminal for forgetting to dispose of a bullet that he found on a floor while installing a
carpet.

Katica Crippen, a 32-year-old woman with a drug conviction, posed naked for her photographer boyfriend holding one of his guns as a prop. Police found the photos while surfing Internet porn sites. Her nakedness was no offense, but prosecutors interpreted holding a gun as "being in possession." Crippen was given an 18-month federal sentence for being an "armed felon."

Sentencing guidelines force judges to give unjust sentences for such non-crimes. Federal judge
Richard Matsch, who presided over the Oklahoma City bombing trial, found Crippen's case on his docket. Outraged at the lack of prosecutorial judgment, he asked: "How far is this policy of
locking up people with guns going to go? Who decided this is a federal crime?"

Reporter David Holthouse examined 191 Colorado federal firearm cases. The vast majority
convicted as "armed felons" had no record of violent felonies. Most were drug possession
charges. Only four had actually fired a gun during a crime.

In Richmond, Va., the meritless gun cases pursued by federal prosecutor David Schiller caused federal judge Richard L. Williams to observe that "90 percent of these defendants are probably no danger to society."

Prosecutors already had a hearty appetite for expansive interpretations of gun laws prior to
Project Safe Neighborhoods. Candisha Robinson sold illegal drugs to undercover officers in her
apartment. A subsequent search found an unloaded gun locked in a trunk in her closet. She was
charged by federal prosecutors with "using" a firearm while committing a drug offense.

Readers might lack sympathy for unsavory characters, but unsavory character is no justification for unsavory indictments.

In the end, many law-abiding citizens will end up in jail for merely being gun owners or acting in
self-defense. A spouse, maneuvering for the upper hand in a divorce proceeding, can place a gun owner in violation of gun laws merely by obtaining a restraining order. Prosecutors already bring first-degree murder charges against occupants who shoot threatening intruders in self-defense.

Healy notes other unintended consequences of Project Safe Neighborhoods. The law contravenes President Bush's endorsement of federalism and the Supreme Court's effort to resist Congress' inclination to federalize crime. Just after his inauguration, President Bush told the National Governors Association, "I'm going to make respect for federalism a priority in this administration." Bush neither respects federalism nor upholds the Constitution when he crosses 10th Amendment lines and federalizes petty gun crimes.

How can Republicans demand respect for the Constitution when the centerpiece of their
crime-fighting program leads off by trampling all over it?

Another consequence, which might not have been unintended, is jury-shopping by prosecutors.
Black juries resist prosecutors' efforts to convict based on expansive interpretations of laws and meritless charges. In contrast, white juries believe the prosecutor. Federalizing gun charges lets prosecutors escape urban jury pools by moving cases to suburban federal district courts.

Healy advises President Bush to abandon Project Safe Neighborhoods, because it is an "affront
to the Constitution and the rule of law." No one should be surprised when many of those prosecuted in the name of Safe Neighborhoods are hapless gun owners who are no threat to society.

©2002 Creators Syndicate, Inc.



So, Mr. LaPierre, tell us again why "law-abiding gun owners" should throw our support behind Exile and Safe Neighborhoods? I suppose if you give a newly-minted federal prosecutor a hammer, the world looks like a nail...

[KSFreeman]

Trigger Lock, Bullseye, Safe Street, Exile and now Safe Neighborhoods. They all start with prosecutions of biker meth gangs from hell and then branch out to some poor 47 year old CPA whose only prior contact with the justice system is a speeding ticket in `82 who forgot to cross an "i" or dot a "t" on his 4473 or his NFA Form 4 app for a suppressor.

The NRA should work to repeal laws, don't work to enforce them, until the NFA, SSA, and VCCA are gone. Federal prosecutors are tremendously powerful. Fortunately they do not flex as they can. If they target gun owners, as they have certain legit targets, very bad times would be ahead.

[johnbt]

I suggest that (almost) all the comments on Exile-type programs attributed to federal judges be ignored. They don't want the extra workload. Might also apply to the federal prosecutors.

On to the next thing -

Biker meth gangs? Not here in RVA. Crack posse maybe. Any convicted felon with a gun definitely. They didn't learn the lesson the first time, so maybe something a little stronger the second time will help.

On to the next thing-

"Her nakedness was no offense, but prosecutors interpreted holding a gun as "being in possession." "

I don't understand the problem with this one. Is it that they didn't prove that she was the owner of the gun? It never occurred to me that a convicted felon could possess a gun as long as they didn't own it. ("No Your Honor. I didn't possess the gun at the time I robbed Mrs. Smith, I'd only borrowed it for the afternoon.")

Or is the author saying that she wasn't a convicted felon or that she wasn't holding the gun?

As long as we're advocating being easy on the crooks, should we go ahead and campaign to let them all out of jail?

John

[Mr. James]

Respectfully, jonhbt,

We have 713 new prosecutors whose sole raison d'etre is to prosecute gun crimes. No prosecutions, no more job. Even if they aren't paragons of bureaucratic industry, they have to produce results (i.e., gain convictions) to stay employed.

As to the indiscreet young lady, I think its risible to suggest that laws barring felons from possessing firearms were intended for this type of foolish situation. They are intended, I believe, to prevent or, that failing, to provide punishment for, felons who wish to commence or continue using firearms to further criminal ends (let's not even get into how well they work).

This is the author's point. Yes, obviously, she was photographed holding a firearm; she was, at that moment, at least, manifestly "in possession of a firearm." But cases like this particular offense would not have merited prosecution before. In the Brave New World, they search for them, here, to the tune of an 18-month jail term. Look at the Robinson case - it is a Klintonesque torturing of plain reason, not to mention English, to suggest this woman, whatever her other faults, was "using" a firearm in the commission of a crime.

Finally, come on, now John, no one - certainly not the author - is "advocating being easy on crooks." The author's stated concern is we'll be creating scores, if not hundreds of new "criminals" out of such ridiculous cases. The unstated concern is the pressure will mount to haul in ever larger catches as this program grows.

I don't see that as good news for any of us, no matter how many "crack posses" go down with us.

Stay well.

[Justin Moore]

Once they run out of serious gun crimes, they push on with technical and meritless indictments.

Regardless of what Ashcroft says, here we find the TRUE intent of the law.

And they are pro 2nd Amendment

[C.R.Sam]

Invent a crime.
Job security.
Control
Power

[johnbt]

Of course I don't trust the government...I work for the (state) government I think we can agree that the government builds empires based on the theory that if a little of something is good (the original Project Exile - maybe - the way it worked here the first 2 years or so) then more layers of management and employees, and more laws, simply must be better. (You can't be important if you don't supervise a whole lot of people.)

My ongoing compaint is that every reference to this 'new' program invariably refers to the original program, Richmond's Project Exile, and uses anecdotal evidence taken out of context with few, or no, supporting details in an effort to try and prove a point.

"The vast majority convicted as "armed felons" had no record of violent felonies." What the heck kind of logic is this. If they were convicted of a felony and told not to touch guns and did - why I'm I supposed to feel sorry for them? Maybe I'd prefer that the law read differently - but it don't, do it? So some guy forgot he had the cartridge he found at work - insert for sale ad for a bridge in Brooklyn - why'd he pick it up in the first place? If it was in the way he should have tossed it out of the window or flushed it.

Was the time they got for the crime or was it for something related to parole/probation violations? Who knows. The article does not say.

The only complaints about Project Exile that I've heard publicly aired in Richmond, and I've been here 30 years and know lots of gun owners, have been from the people getting prosecuted(or their lawyers) and the federal folks who don't want "local" cases clogging up their dockets.

Remember, a great number of the corner drug dealers in Richmond stopped carrying guns away from home because they didn't want to do 5 years in a jail far away from home. They were used to doing their time with their friends and relatives within easy driving distance of Richmond. The away from home provision was the lever that changed their behavior and the people who thought it up used federal involvement to accomplish it.

Let's not throw the baby out with the bathwater if we can help it, although maybe the baby has already been tossed.

John

[Russ Howard]

If they were convicted of a felony and told not to touch guns and did - why I'm I supposed to feel sorry for them?

1. Many unconstitutional gun controls are felonies. Machine gun possession for example, and CCW in some states. You don't have to be a "crook" to be guilty of them. You can be a good, patriotic American. Yet NRA's authority worshippers cheer a system that puts such folks in prison for "violating" unconstitutional laws, then again because they were "told not to touch a gun" after their first unconstitutional conviction.

2. Exile (aka: Project Gulag) is quite clearly not just about violent felons. It has been sold, and is being implemented, as zero tolerance, full enforcement of all existing gun laws, i.e., all existing gun CONTROLS. The same unconstitutional gun CONTROLS good Americans tried to stop and are supposed to be trying to repeal.

3. Our message is supposed to be "gun control increases violent crime", or "gun control doesn't work" (increases or doesn't stop crime). "What works is targeting violent criminals for their violent crimes, getting them off the streets, and deterring others."

4. NRA management's message is now implicitly "GUN CONTROL WORKS." NRA management says "enforcing all existing gun laws with zero tolerance will reduce crime, therefore we don't need any more gun laws." A false premise supporting a false conclusion.

The premise, even if true, is better suited long term to supporting the opposite conclusion. The "truth" that is delivered is that gun control works, if viciously enforced. But there's nothing magic about existing gun controls versus those that have not yet been enacted. So the natural argument will be this:

"Enforcing existing gun controls proves that gun control works to reduce crime. Hence, enacting and enforcing new gun controls will reduce crime even further. Therefore, we need more gun control."

How do we argue against that, once we've "proven" that gun control works?

Of course, the premise is NOT true. Gun control, per se, doesn't work. What works is punishment of real criminals, which is occurring, but only incidental to the particular way these laws initially happen to be enforced. Ultimately, they will primarily serve to infringe on the Second Amendment rights of decent people, suppress self-defense, and raise crime. Unfortunately, NRA management's deceptively attractive "truth" is now cemented and doing immeasurable, perhaps irrecoverable damage to our core arguments.

Exile and its mutant offspring may have provided some temporary reprieve from new gun controls, but its primary effect is to legitimize gun control as a crime fighting tool and destroy our ability to argue against new gun controls.

We've now managed to make the American public believe the very same false premise that we had been fighting for decades. And I don't believe that consequence is totally unintended.

Stupidity may explain most of NRA management, but the pervasiveness of NRA management's anti-gun activity indicates a significant level of infiltration and subversion.

[Justin Moore]

"The vast majority convicted as "armed felons" had no record of violent felonies." What the heck kind of logic is this

Just like Ayn Rand said once, when you don't have enough criminals, you make some. You create so many laws that its impossible to live your life without breaking them.

[Futo Inu]

Well said, Russ Howard and KSFreeman. Unintended consequences, indeed. And to think that when I first heard of the idea through NRA, I thought it to be a good one. But in the end, it's a poorly-thought-out, "compromise measure" with good intentions, but that will only lead to further infringements. Overworked prosecutors exercising their discretion as to which cases are good to prosecute because the defendant's are true dangers to society=good. Underworked prosecutors with time on their hands, coupled with a myriad of unconstitutional, technical laws=very, very bad for law-abiding citizens. Agreed.

PS. As I've said before, I believe "enhanced sentencing" laws are good things, as a general rule, and I believe should still be rigorously enforced by the STANDARD prosecutor. The problem here is one of the administration of the get-tough policy. The error is appointing the special prosecutor for gun crimes. That creates the power-aggrandizing, constant-justification vicious cycle. Simply implementing a get-tough policy as to the enhanced sentencing measures only, with the current prosecutorial staff, is a good thing (provided that, for starters, the courts interpret "in the commission of..." to mean what it obviously, clearly means - the gun is actually USED in furtherance of the crime. )

[Russ Howard]

(provided that, for starters, the courts interpret "in the commission of..." to mean what it obviously, clearly means - the gun is actually USED in furtherance of the crime. )

Exactly. That's a major problem with enhanced penalties for "gun crimes". What's a "gun crime"? Ask an anti-gunner or a British cop, and they'll say possession of an "illegal" gun is as legitimate a "gun crime" as robbery with a gun. Prosecutors will inevitably pervert public sentiment for enhanced penalties into support for prosecuting victimless gun crimes.

But why dole out a higher penalty for a rape committed with a gun than for a rape committed with a knife or brute force? Because guns are bad? That's the underlying message. Our message used to be, the crime should determine the sentence, not the tool used. Here again NRA management convinced the public to buy into an anti-gun argument we'd been fighting for years, yet we're surprised when it backfires.

That's why I don't support enhanced penalties.

[publius42]

Let's see...a law saying that the presence of a gun makes what would otherwise be a state or local crime into a federal crime. Now, where was the authority for that again? I seem to have lost it.

Article. I.
Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[Oleg Volk]

Further unintended consequence of "enhanced" (harsher) sentencing. More people would decide to fight it out rather than go to jail and then to prison for a long time.

[Justin Moore]

Everyone needs to read Cato Institute's excellent policy analysis on this issue:

There Goes the Neighborhood: The Bush-Ashcroft Plan to "Help" Localities Fight Gun Crime
by Gene Healy

Gene Healy is an attorney and senior editor at the Cato Institute.


--------------------------------------------------------------------------------

Executive Summary

The centerpiece of President Bush's crimefighting program is an initiative called Project Safe Neighborhoods. That initiative calls for the hiring of some 700 lawyers who will be dedicated to prosecuting firearm offenses, such as the unlawful possession of a gun by a drug user or a convicted felon. The basic idea is to divert firearm offenses from state court, where they would ordinarily be prosecuted, to federal court, where tougher prison sentences will be meted out. Project Safe Neighborhoods will also provide funding to escalate gun prosecutions at the state level.

Praise for Project Safe Neighborhoods comes from quarters as diverse as Handgun Control, Inc. and the National Rifle Association. Unfortunately, those disparate parties have united in support of a singularly bad idea. Project Safe Neighborhoods is an affront to the constitutional principle of federalism. The initiative flouts the Tenth Amendment by relying on federal statutes that have no genuine constitutional basis. Moreover, the program will very likely lead to overenforcement of gun laws and open the door to prosecutorial mischief affecting the racial composition of juries. As the constitutional and policy implications of Project Safe Neighborhoods become more apparent, the Bush initiative looks less like a commonsense solution to crime and more like a political gimmick with pernicious unintended consequences. If the "respect for federalism" he has repeatedly professed is sincere, President Bush must reconsider his support for Project Safe Neighborhoods.



http://www.cato.org/pubs/pas/pa-440es.html