Bipartisan Prisons

Recent history teaches us that policies with bipartisan support, from financial deregulation to foreign wars, can be dangerous ones. The same has been true with mass incarceration in general and the criminal law approach to illegal guns in particular.

In 2006, New York mayor Michael Bloomberg, a political independent and one of the NRA’s highest-profile opponents, successfully pushed for a state law establishing a three-and-a-half year mandatory minimum for illegally possessing a loaded handgun. Last November, Democratic Milwaukee mayor Tom Barrett and Republican governor Scott Walker both supported the enactment of a three-year mandatory minimum for felons caught with guns. Chicago mayor Rahm Emanuel and Philadelphia district attorney Seth Williams, both Democrats, have called for harsh illegal gun mandatory minimums.

In Baltimore, the death of Freddie Gray resulted in a crush of politicians pledging reform. That hasn’t stopped Police Commissioner Kevin Davis from pushing for a harsh gun sentencing measure. It’s co-sponsored by Senate majority leader Catherine E. Pugh, the Democratic nominee who will almost certainly be the city’s next mayor.

James Forman, a law professor at Yale, says that black leaders have historically advocated for tougher gun laws out of desperation alongside calls for economic development — a Marshall Plan for cities. According to Forman, “they got the gun laws, but not the Marshall Plan.” The result, he argues, is the “worst of all worlds”: legally produced guns flooding impoverished communities where people feel the need to carry them and are frequently incarcerated or shot dead as a result.

State and local laws vary across the country but there are three key federal statutes driving the war on guns. First is the general prohibition on illegally possessing a gun because one has a felony conviction (or because of some other factors, including because one illegally uses drugs). In fiscal year 2015, 4,984 people were convicted under 922(g), 51 percent of them black.

Another key statute is 924(c), which establishes a series of mandatory minimum sentences ranging from five years to life for people who possess, brandish, or use a firearm during a drug or violent crime. Even if the gun was legally acquired or, as was the case with Echols, sitting at home unloaded. The power to pursue such sentences lies entirely with prosecutors, who use their discretion to intimidate people from going to trial.

The other key federal statute is the Armed Career Criminal Act, which establishes a fifteen-year mandatory minimum sentence for illegal gun or ammunition possession when a person has committed three violent or drug crimes. Those crimes can in reality be rather unserious and can all occur in quick succession — on one day and before any given conviction — and thus don’t necessarily target wanton recidivists. In one case, a man was sentenced to fifteen years for illegal gun possession thanks to having been previously convicted for burglarizing three adjacent stores. The defendant had, Jenny W. L. Osborne writes, “become a career criminal in just over half an hour.”

As of the end of 2013, Bureau of Justice statistics estimate that fifty-one thousand people were locked up in state custody for public-order offenses involving a weapon — “carrying, exhibiting, firing, possessing, or selling a weapon” — or nearly 4 percent of the total state prison population. In the federal system, 30,500 people were locked up on weapons offenses as of the end of September 2014, or 15.8 percent of the total.

What’s more, those numbers don’t capture gun laws’ true reach because BJS only classifies offenders by what is deemed to be their most serious offense. Nearly a quarter of 91,455 federal prisoners classified as drug offenders in 2012 (sentenced since 1998) received a sentence involving weapons, according to an October 2015 BJS report. Roughly three quarters of drug offenders in federal prison in 2012 (sentenced since 1994) were black or Hispanic.

Calling the NRA’s Bluff

The NRA and its allies have ensured that guns are produced and distributed with little regulation, while liberals who support gun control and conservatives who oppose them have crossed the aisle to pass draconian laws to punish those banned from possessing them. The upshot is the deregulated production of guns coupled with a partially criminalized regime for possessing them — and a two-tiered and racially discriminatory right to bear arms.

The country is flooded with guns. “Good” and iconically white citizens are given the maximal right to bear those guns. That right is justified by appealing to the need to protect against Muslim terrorists, unstable mass shooters, and most enduringly a criminal underclass, iconically black, that is mercilessly punished for bearing arms.

The NRA, funded (to a significant but unclear degree) by an industry that depends on a huge market for illegal guns to ensure profitability, has called for putting those very same black-market (and, not incidentally often black) customers in prison for extremely long periods of time. This is less a contradiction in American gun politics than its condition of possibility.

At the NRA’s May convention, Donald Trump, accepting the group’s endorsement, complained that “President Obama tried to take the guns from law-abiding Americans but has reduced prosecutions of violent criminals who use guns.”

Trump, as usual, knew his audience well, and his speech was in line with a recent push by the NRA to double down on foreboding law-and-order talk, warning that liberals, in the name of reform, want to flood the streets with criminals and disarm the citizenry. To be fair, the NRA has on occasion (at least in recent years) opposed harsh sentencing measures and some gun-rights advocates are staunch critics of mass incarceration.

But the NRA has a long history of agitating for harsh sentencing and prison construction. And it has relentlessly warned that “the only thing that stops a bad guy with a gun is a good guy with a gun.” The notion is not only vigilante but profoundly carceral, grounding the right of certain people to own guns in the criminality of others. Yet many liberals, whatever they might say about the NRA, have accepted the basic and racist premise of its argument.

“Even a politician who doesn’t accept the NRA’s money will accept their rhetoric and define the problem as dangerous people with guns, rather than questioning the public policy purpose of allowing this industry to remain virtually unregulated, unable to be held even civilly liable for the effects that it has on the country,” says Stephanie Kollmann, policy director at the Children and Family Justice Center at Northwestern University Pritzker School of Law.

Gun policy has long pivoted around the specter of armed black people, from posses of post–Civil War white reactionaries disarming blacks to California governor Ronald Reagan signing a bill to ban open carry in response to the Black Panthers’ brazen public display of weapons. Beginning in the 1960s, a crime wave took off as the modern conservative movement gained steam, giving potent white fears an aura of legitimacy and a political vehicle to shape both major parties’ agendas. That fear, despite the precipitous decline in crime since the 1990s, is spiking once again.

When a Minnesota police officer shot Philando Castile dead by in his car, he was carrying a legal gun that his girlfriend has said he told the officer he possessed. His bloodied body, viewed by millions online, called the gun rights movement’s bluff: is a black man carrying a gun that he was licensed to carry a “good guy” when he is shot dead by the police? The NRA was criticized, seemingly even by its own members, for, like the officer who shot him, failing to acknowledge Castile’s right to carry.

Castile’s death, like Alton Sterling’s, contradicts the NRA’s bedrock message, as David Graham pointed out in the Atlantic: “Castile and Sterling represent cases in which carrying a gun not only failed to make the men safer, but in fact contributed to their deaths.”

The Foundational Other

Poor young black men shoot each other at alarming rates. But it’s not, as a member of the Wall Street Journal editorial board put it, a simple matter of “black criminality, which is a function of black pathology, which ultimately stems from the breakdown of the black family.”

Many black Americans, excluded from the formal labor market and harboring a longstanding distrust of law enforcement, depend on “self-defense or reliance on friends and family in confrontations with others,” says Eric Schneider, a historian at the University of Pennsylvania working on a history of murder in the United States.

“Dependence on the underground economy for income — activities ranging from selling drinks by the glass after hours or hosting card games to more obvious illegal activities such as drug dealing — reinforced the tendency to rely on oneself rather than on the state for protection,” Schneider continues.

As of 2009, black Americans had a gun homicide rate more than seven times higher than whites. But at the turn of the twentieth century, it was Italian immigrants who had the highest rate of homicide victimization. One big thing that has changed since then: the proliferation of guns which, Schneider notes, has made “confrontations more deadly.” It is the prevalence of guns, and not underlying crime rates, that causes the United States to consistently lead its peers in murder.

And while Italian Americans became integrated into the white apex of the United States’ racial caste system, black people, and the black poor in particular, remain that system’s foundational other. Economic exclusion doesn’t explain all rampant gun violence in segregated and poor black communities. But on a systemic level, it is its fundamental premise.

Those working in the informal or illegal economy, for example, deal in cash and without the benefit of the state performing basic regulatory functions, like guaranteeing contracts. Alton Sterling sold CDs on the street. Ronnie Horton, who said that he had purchased CDs from Sterling, told the CBC that Sterling claimed to need a gun because a friend who also sold CDs had been robbed.

What’s at work is not pathology but rather political economy: many people with felony records carry guns for security that they do not trust that police will provide — including to secure the conditions for economic life, and life itself, that for more affluent Americans is among the state’s primary functions.

Whether protecting their business — or, in the case of the internecine feuds that envelop many neighborhoods where too many young men excluded from the labor market have far too much time on their hands, their lives — guns are a horrible systemic problem that can on a personal level be an immediate necessity.

“If you are a young black man on the south or west side of Chicago who has prior contact with the law and a criminal background of a certain type, you are exponentially more likely to face a threat to your life,” says Kollmann. “And you are completely prohibited from carrying a weapon in your self defense … The people who form a lot of the NRA’s membership are people who face statistically very unlikely threats to their person in their daily life. It is just a very remote possibility that going to their suburban grocery store they’re going to need a weapon.”

Violence is way down, and though “the growth in incarceration rates reduced crime,” a major study from the National Academies’ National Research Council found that “the magnitude of the crime reduction remains highly uncertain and the evidence suggests it was unlikely to have been large.” The level of violence that persists — especially in cities like Chicago and Baltimore — is intolerable. But police and lengthy prison sentences can’t put it to an end.

Economic power for marginalized men and their families is one path to disarmament; in the shorter term, programs that reach out to defuse disputes before they boil over, which often show success but never garner enough attention or funding, are another. Harsh mandatory minimums, according to University of Minnesota law professor Michael Tonry, achieve mostly nothing save for fomenting inequity and injustice.

Stalled reform legislation in Congress will do some, though not close to enough, to ease sentences. Amid calls for change, a major taboo holds against cutting gun sentences, which reflects a problem facing the movement to end mass incarceration as a whole: reform proposals are still mostly limited to crimes people don’t think are too bad to begin with, like drugs — and even with drugs discussions about legalizing anything beyond marijuana have so far been a nonstarter. Liberals increasingly express concern for the collateral consequences of felony records, which limit people’s access to employment, housing, and voting. But rarely does this sentiment extend to firearms — a denied right that, if claimed, can lead to draconian punishment.

Forman, the author of the forthcoming book. Locking Up Our Own: Crime and Punishment in Black America, says that gun sentences begin to touch on a “third rail of criminal justice reform,” which is violent crime. He warns that the movement might be overselling a “nonviolent-only solution” and in doing so be building “a movement on a lie” that most people in prison are there for nonviolent offenses.

“We’re not going to actually talk about punitive gun policy as a problem if we’re unwilling to talk about criminal justice reform beyond nonviolent offenders,” says Forman.

A few things are clear: guns are a murderous problem; the NRA is racist and reactionary; and liberals are deluded if they believe that sentencing more black men to prison for gun crimes will do anything other than send more black men to prison. Government must disarm America, including NRA members, including the police. And it is government too that must end the war on guns.