CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 29, 2020

Charles & Garrett on Federal Gun Crimes

Jacob Charles and Brandon L. Garrett (Duke University School of Law and Duke University School of Law) have posted The Trajectory of Federal Gun Crimes on SSRN. Here is the abstract:
Federal gun prosecutions have for decades been a growing part of the federal docket, reflecting not only the priority placed on reducing gun violence, but also a broad range of quite distinct federal priorities. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution, possession of particular weapons such as machine guns, use by drug traffickers, and individual possession of firearms by felons. Second, we describe how in practice, uses of enacted gun crimes have adapted to criminal law priorities of Congress and federal prosecutors over time. Most recently, they became prominent in immigration prosecutions, while in the 1980s, drug gangs were the priority.
In so doing, gun cases provided vehicles for testing the reach of federal jurisdiction, use of federal crimes as sentencing enhancements, and boundaries between federal, state, and local enforcement. We argue federal gun crimes reflect a unique dynamic in which legislation is shaped by three forces: (1) aggressive interest group lobbying that ends in compromise on harsh punishment; (2) judges and lawmakers dichotomizing guns, as between “law-abiding citizens” and use by “thugs” and “gangsters”; and (3) prosecutorial power, magnified due to ubiquity of firearms, permitting broad federal jurisdiction, and then leveraging the discretion of federal prosecutors to utilize severe sentences to obtain plea bargains. Our overall goal is to illuminate the central, but inconsistent and complex, place of gun crimes in federal criminal law. We conclude by asking what principles could guide the development of this body of law through judicial interpretation, future legislation, and in enforcement, towards a new vision in which federal law is designed to reduce disparities in enforcement and to prevent gun violence.

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