What if the Gun Nuts are Right? part 3



	She’ll be the judge: District Attorney Lynne Abraham complains that local judges betray their sworn duties by habitually giving free rides to felons with illegal guns. photo: Trevor Dixon

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To a repeat offender like Gerald Smith, who may have grown accustomed to the discount sentencing in Philadelphia’s Criminal Justice Center, appearing in federal court just a few blocks away comes as a rude shock.

In the words of one federal prosecutor, "It’s a world away from the place down the street."

Federal courts, for instance, rarely grant release on bail to violent offenders awaiting trial. If federal prosecutors take your case, it means they’re 95 percent sure they’ll win. And federal prison inmates, unlike state prisoners, don’t get paroled or released early for good behavior.

"Sometimes," says the prosecutor, "they’ll say ‘OK, how much time will I serve on a five-year sentence?’ and their attorneys will have to explain that five years means five years."

Gerald Smith pleaded not guilty, and during his trial he experienced what might have been his only bit of luck since his arrest. The undercover cop who testified he’d bought crack from Smith turned out to be under investigation by police Internal Affairs. With the credibility of one of his main witnesses suddenly in doubt, the nervous prosecutor offered Smith a deal during a lunch recess: Plead guilty to the gun count, and we can forget the drug charge.

Smith took the gun count alone, with a penalty ranging from 84 to 105 months — about seven to nine years. It was a far cry from the 30 years he had faced earlier that day, but in Philadelphia’s justice system, there are convicted killers serving far less than 84 months.

Because every Cease Fire case is based on the confiscation of a gun, mainly by Philadelphia police, Stiles says the few Cease Fire cases that actually go to trial are short and have few witnesses. "They’re quick," he says. "Generally, you’re dealing with officer credibility. You know, somebody says, ‘That wasn’t my gun,’ ‘I didn’t have the gun, the officer put it on me,’ or ‘That thing he saw me throw down wasn’t a gun.’"

It may be part of the reason these sorts of cases have been a kind of stepchild in the world of federal prosecutions. Gun possession cases tend to be ugly and dull, not at all the kind of work that federal prosecutors or, for that matter, federal judges had in mind when they accepted their jobs. High profile U.S. Attorneys like Rudolph Giuliani make their marks bringing down criminal empires and matching wits with white-collar embezzlers, the stuff of books and movies.

But it is the U.S. Justice Department in D.C., led by the attorney general, that ultimately sets the budgets, and thus, the agendas for the regional U.S. Attorney’s offices around the country. And since Congress started passing stiff federal laws against illegal guns and drugs in 1968 (the year of the Martin Luther King and Bobby Kennedy assassinations) no Justice Department has ever seen fit to push for anything resembling comprehensive enforcement of those laws. Over the years, Congress has passed new laws and federal sentencing commissions have instituted increasingly heavy penalties for simple gun possession by a felon, repeat offenders and career criminals. People have been occasionally singled out for prosecution, but for the most part, federal gun possession laws have been ignored by all of the last six presidential administrations.

Early in the days of Project Exile, the Richmond U.S. Attorney’s Office ran into resistance from judges who believed that ordinary gun cases are not a federal matter. Several federal judges in Richmond said the federal government should not pick up the slack for what was evidently a failure of state and local government. One wrote to Chief Justice William Rehnquist to complain that the project was upsetting the constitutional balance of powers between the federal government and the states.

Stiles says he’s heard no such complaints from federal judges here, and that with so few cases actually reaching trial, Operation Cease Fire has been a minimal burden to the judicial calendar. Any leftover doubts about doing gun cases in federal court, he says, "have really been superseded by national developments regarding gun violence, and by the success of these projects.… It would be reckless to speak for the [Clinton] administration, so I don’t want to do that," he adds. "But it is clear that there’s been a national executive [branch] response to a rash of firearms violence that’s troubling people. I think that’s how it has developed."

Since last October, after U.S. Attorney General Janet Reno asked all of her U.S. Attorneys to review and report on their gun enforcement activities, statewide versions of Exile and Cease Fire have sprung up in U.S. Attorney Offices in Colorado, Louisiana, South Carolina and Texas.

At 9:30 last Wednesday morning, lawyers for both sides chat in hushed tones in courtroom 17A as they await the start of Gerald Smith’s sentencing hearing. Compared with the Criminal Justice Center’s cramped courtrooms, 17A is a vast and imposing throne room of justice, with a 25-foot ceiling and a huge brass-colored seal of the United States displayed on the wall above the judge’s head. From the colonial portrait on the wall to the height of the judge’s bench, everything in 17A communicates that you are breathing the rarefied air of the U.S. judicial system, confirming that this represents another world.

As Smith enters the courtroom in handcuffs, he flashes a big smile at the woman with two children in the third row — the lone spectators in the silent, starkly lit room. "Dada!" one of the children murmurs softly, followed by a shush from her mother. As they await the arrival of the judge, Smith looks back at his children and mugs for them. He points his index finger forward, and waggles his thumb — pretending to shoot at them.

Chief Judge James T. Jones enters, and all eight people in the room rise. Smith’s attorney makes a pitch for a sentence on the low side of 85 months, noting that his client had pleaded guilty to the gun charge. He also asked that the judge recommend Smith be placed in a federal prison close to Philadelphia. His daughter, the attorney explains, has sickle cell anemia, and he wants to be close to her.

Judge Jones slouches on the bench, some 30 feet from Smith, as the guilty man contritely promises to take college courses in business and real estate while in prison. "Basically, I just want to apologize to the courts for putting you through this trouble.… I’m just asking for you, when you make your decision, that you be soft in your heart."

So far in Richmond this year, there are signs that the tide of gun violence has turned.

Only 252 guns have been confiscated in Project Exile arrests during the first quarter of the year, compared with 331 at this time last year — a drop of 24 percent.

"That’s pretty significant," says Christie Collins, a Richmond police spokesperson. "We’d like to think that that’s because there’s less out there."

There have also been only 11 murders in Richmond in the first quarter of the year, compared with 20 killings by March 31 a year ago. If the first-quarter rate holds up over the entire year (like it did in 1999), Richmond will have its lowest murder rate since 1970.

For Philadelphia, this high point in the Richmond experiment could be a harbinger of things to come, though the two programs differ in one important way. While Richmond federally prosecutes every gun case in the city, the U.S. Attorney’s Office here can handle only about one-third of the estimated 1,000 "federal-eligible" gun cases in Philadelphia. That means a triage of sorts has to take place in the District Attorney’s Office to determine just who’s bad enough to take to federal court.

"Any case involving drug trafficking and a firearm gets you into federal court," says George Mosee, who heads the District Attorney’s narcotics division and recommends Cease Fire cases to the federal system. "We’re looking for the ones we really want off the streets." Of the 143 defendants Mosee passed along to Cease Fire in 1999, 67 of them had at least two prior convictions for violent or drug-related crimes, and 42 of them had at least three such prior convictions.

Despite the limits on the numbers of cases he can pass along, Mosee has managed to derive a halo effect from Operation Cease Fire, even with cases that don’t go federal. For instance, by merely threatening to take their cases to federal court, Mosee’s unit has persuaded at least 10 gun offenders to plead guilty in Common Pleas Court and accept sentences of up to seven years in state prison.

What remains to be seen, though, is whether the focus on just the most egregious repeat offenders will earn Cease Fire the same fierce reputation on the streets here as Exile has in Richmond. Police there have videotapes of house searches in which suspects have been heard protesting, "No guns here. Project Exile, man!"

With the Clinton administration now planning to replicate Cease Fire and Exile all over the country, it’s finally time to ask the one remaining fundamental question: How could such an elemental duty as enforcing the laws of the land go ignored for so long, and waste so many lives in the process?

Harvard’s James Q. Wilson, again a sage before his time, wrote in 1983 that "For reasons best known to state legislators who talk tough about crime but appropriate too little money for big-city court systems to cope properly with lawbreakers, the struggle against street crime that has supposedly been going on for the last decade or so is in large measure a symbolic crusade." He could have said the same thing about Congress and its gun laws.

Recent polls may shed some light on how things have persisted this way for so long. According to the Gallup Polls, Democratic voters believe the need for new gun laws is more important than strictly enforcing existing laws by a margin of 58 percent to 35. Republicans, on the other hand, believe the opposite, by a margin of 50 to 37. Yet Republicans are least likely to support the increased government spending needed to enforce the laws, while Democrats are unconvinced that increased spending to enforce laws would do any good.

And with the Justice Department and federal judges historically seeing gun cases as something fit only for their poor cousins who toil at the local levels of government, there has been no natural constituency for enforcement of laws that might have saved thousands of lives and left untold numbers of potential criminals "scared straight" and avoiding criminal involvement altogether.

It all adds up to a gruesome conclusion that both sides of the gun debate have for decades played to the emotions and prejudices of their core constituencies, which are mainly white and suburban, while ignoring all the people in the country’s biggest cities who have been killed, injured and terrorized every day by criminals that their own federal government was either too arrogant or too politically craven to bother prosecuting.

When Smith is finished with his statement, Judge Jones mutters absently that he should get himself in a drug treatment program in prison. Then, almost casually, the judge utters the sentence — 90 months, with three years of supervised probation to follow, along with drug aftercare. Jones grants Smith credit for his 15 months already served, but denies Smith’s request to be recommended for a federal prison close to Philadelphia. The judge’s words run together as though he is dispensing with a distasteful task. There is an arid efficiency in the transaction, between judge and convict, that seems both brutal and bloodless.

Handcuffed again, Smith smiles to his family and mouths, "Did you get my letter?" And just like that, he disappears through the tall woodgrained doors of 17A. Gerald Smith won’t have another chance to carry a loaded gun on the streets of Philadelphia until the year 2006.

For more information
Philadelphia-area U.S. Attorney's Office

Full coverage of recent gun control news developments.

Gallup Poll data on gun control issues.

The nation's leading advocacy group for gun control.

The nation's leading gun owners' group.

Policy group advocating gun control.

Radical right-wing pro-gun site.

Pennsylvania legislators coalition on gun control