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Mandatory Sentencing

Those who want to make simple gun possession a crime frequently call for a mandatory prison sentence for unlawful possession of a gun. The National Handgun Information Center demands a one-year mandatory minimum sentence for possession of a handgun during "any crime" (apparently including drunk driving or possession of a controlled substance). Detroit recently enacted a 30-day mandatory sentence for carrying an unlicensed gun.[156] None of those proposals is a step toward crime control.


Massachusetts's Bartley-Fox law, with a mandatory one-year sentence for carrying an unlicensed gun, has apparently reduced the casual carrying of firearms but has not significantly affected the gun use patterns of determined criminals.[157] Of the Massachusetts law, a Department of Justice study concluded that "the effect may be to penalize some less serious offenders, while the punishment for more serious offenses is postponed, reduced, or avoided altogether."[158] New York enacted a similar law and saw handgun homicides rise by 25 percent and handgun robberies 56 percent during the law's first full year.[159]
The effects of laws that impose mandatory sentences are sometimes brutally unfair. In New Mexico, for example, one judge resigned after being forced to send to prison a man with a clean record who had brandished a gun during a traffic dispute.[160]One of the early test cases under the Massachusetts Bartley-Fox law was the successful prosecution of a young man who had inadvertently allowed his gun license to expire. To raise money to buy his high school class ring, he was driving to a pawn shop to sell his gun. Stopping the man for a traffic violation, a policeman noticed the gun. The teenager spent the mandatory year in jail with no parole.[161] Another Massachusetts case involved a man who had started carrying a gun after a co-worker began threatening to murder him.[162] The Civil Liberties Union of Massachusetts had opposed Bartley-Fox precisely because of the risk that innocent people would be sent to jail.[163]
The call for mandatory jail terms for unlicensed carrying is in part an admission by the gun control advocates that judges reject their values and instead base sentences on community norms. A Department of Justice survey of how citizens regard various crimes found that carrying an illegal gun ranked in between indecent exposure and cheating on taxes--hardly the stuff of a mandatory year in jail.[164] The current judicial/community attitude is appropriate. In a world where first-time muggers often receive probation, it is morally outrageous to imprison for one year everyone who carries a firearm for self-defense.
As a general matter of criminal justice, mandatory sentences are inappropriate. One of the most serious problems with any kind of mandatory sentencing program is that its proponents are rarely willing to fund the concomitant increase in prison space. It is very easy for legislators to appear tough on crime by passing draconian sentencing laws. It is much more difficult for them to raise taxes and build the prison space necessary to give those laws effect. Instead of more paper laws, a more effective crime-reduction strategy would be to build enough prisons to keep hard-core violent criminals off the streets for longer periods. If there are to be mandatory sentences for gun crimes, the mandatory term should apply only to use of a firearm in a violent crime



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