What Clinton and Sanders both get wrong about gun control

Gun control is the one issue where Clinton falls to the left of Sanders. But neither of them get it totally right

Published November 6, 2015 5:30PM (EST)

  (AP/Susan Walsh/Jason DeCrow/Photo montage by Salon)
(AP/Susan Walsh/Jason DeCrow/Photo montage by Salon)

Hillary Clinton and Bernie Sanders have differences on gun control. Both support expanded background checks and restrictions on assault weapons. But Sanders voted to immunize gun manufacturers from legal liability and he opposed the Brady Bill (because, he has said, he disagreed with the national waiting period for gun purchases it imposed).

Those differences are important substantively. They are important politically because gun control is perhaps the sole issue on which Clinton can place herself to Sanders' left. And so Clinton has made a point of touting her gun-control credentials (and, much less plausibly, using Sanders' comments to suggest that he is a sexist and maybe even a racist).

Gun control, however, is an issue that is complicated for reasons that are infrequently discussed and that neither Sanders nor Clinton seem to appreciate. Namely, gun control measures focused on hiking sentences for gun crimes fuel mass incarceration and do little to prevent gun violence.

Some gun control measures, like background checks, are basic public safety measures that liberals typically back and conservatives mostly oppose. On the other hand, those that mete out harsh sentences for illegal gun possession, or possessing a gun while dealing drugs or committing another crime, primarily target black men and have won support from both conservatives and law-and-order liberals.

In the 1980s, mandatory minimums, including for guns, proliferated: Congress expanded 18 U.S.C. § 924(c), which today allows for an additional sentence of between 5 years and life to be imposed on someone convicted of carrying a gun while selling drugs or committing a violent crime; and passed the Armed Career Criminal Act, which imposes a 15-year mandatory minimum sentence for someone convicted of possessing a gun who has three or more previous convictions for a "violent felony"' or "serious drug offense." (The definition of the former was recently restricted by the U.S. Supreme Court, a decision with ripple effects that will continue.)

States also have mandatory-minimum laws for firearms. New York, thanks in significant part to the efforts of then-Mayor Michael Bloomberg, has an extremely harsh one. In 2006, the state raised its mandatory minimum sentence for illegal gun possession from one to three-and-a-half years in prison. Bloomberg's ad campaign was direct: “GUNS = PRISON.”

Roughly 51,000 people are serving time in state prisons on weapons offenses, according to Bureau of Justice Statistics estimates for December 31, 2013.

Clinton supports at least one such quintessentially carceral measure: Making "straw purchasing" a federal crime. So, by the way, does Sanders. (Though Sanders has been an outspoken critic of mass incarceration for much longer than Clinton, this is not new territory for him: In 1998, he parted with some black and progressive Democrats to support a bill to increase mandatory minimums for gun crimes.)

Straw purchasing, wherein a person buys a gun on behalf of someone who is barred from doing so, is a serious problem, because it is the source of many guns used in crimes. As Alex Yablon puts the matter, "it’s the same mechanics behind purchasing alcohol for a minor, only instead of cases of beer, deadly weapons changes hands."

But is a prosecution-driven crackdown, as Clinton, Sanders, and the National Review's Kevin D. Williamson suggest, the solution?

There is no easy answer to gun violence short of ending the neighborhood segregation and economic marginalization that has fostered tit-for-tat street corner wars in cities like Philadelphia and Chicago. Police certainly have a role to play. But reaching out to known violent offenders to anticipate a brewing feud and prevent the next shooting, as some promising programs are doing, is less punitive and possibly more effective.

What's pretty clear, researchers have found, is that while the certainty of punishment has a deterrent effect, the length of punishment does not. In short, mandatory minimums don't work. Indeed they "have not been credibly shown to have measurable deterrent effects for any save minor crimes such as speeding or illegal parking or for short-term effects that quickly waste away," University of Minnesota law professor Michael Tonry wrote in the 2009 study "The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings." Other researchers have echoed that sentiment.

Harsh sentencing does, however, fuel the mass incarceration that the Democratic establishment now professes such an ardent desire to end. Nearly one-quarter of federal drug offenders in prison at the end of 2012 and sentenced after 1998 had a sentence involving weapons, according to an October Bureau of Justice Statistics report.

As I wrote in 2013, such measures get a lot of support at the state and city level, where politicians struggle to offer solutions to rampant street violence. And as Alex Gourevitch wrote in Salon, aggressive policing measures, like NYPD's former stop-in-frisk program, are also justified as gun control measures (even if, in the New York case, it mostly served as a dragnet for black men possessing small amounts of marijuana).

"The standard form of gun control means writing more criminal laws, creating new crimes, and therefore creating more criminals or more reasons for police to suspect people of crimes," writes Gourevitch. "More than that, it means creating yet more pretexts for a militarized police, full of racial and class prejudice, to overpolice."

Like other aspects of the criminal justice system, people of color are the ones who most often end up behind bars.

In fiscal year 2014, just 18-percent of those who were sentenced under the mandatory minimum statute for carrying a gun related to a violent or drug crime were white, according to the U.S. Sentencing Commission. 54-percent were black and 25-percent were Hispanic.

And some don't exactly qualify as violent criminals either.

Of the 2,147 people in fiscal year 2010 convicted of a single count under section 924(c), 65 percent received the five-year mandatory minimum penalty, which is imposed for merely possessing a gun—but neither brandishing nor firing it—while committing another crime, according to the U.S. Sentencing Commission.

Take the case of Texan DeJarion Echols, a black college student and nonviolent drug offender whose freedom has been taken away for 20 years. Echols was caught with 44 grams of crack, $5,700 and an unloaded rifle under the bed, according to Families Against Mandatory Minimums. He got 10 years for the crack plus 10 more years more the unloaded rifle somehow 'in connection" with the crack. (He denies that any such connection existed.) And there's Weldon Angelos, who is serving a 55-year sentence for possessing a gun or guns while selling a few pounds of marijuana.

At a moment when Congress is considering winding down mandatory minimums, however modestly, one should take a close look at any gun control measure that touts more more prison time as the solution. If Sanders and Clinton are serious about ending mass incarceration, they should too.

Clinton Targets Gun Reform

By Daniel Denvir

Daniel Denvir is a writer at Salon covering criminal justice, policing, education, inequality and politics. You can follow him at Twitter @DanielDenvir.

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