Gerald Smith probably had no idea how
much trouble he was in when the cops busted his crack house on South Bouvier Street on
January 11, 1999. Although Smith was arrested on serious charges (police said he was
carrying two huge,
illegal handguns and had sold crack cocaine to an undercover cop) his past experiences
with the Philadelphia courts suggested he had little reason to worry.
Even with two robbery convictions on his record, Smith hardly stands out in a justice
system that handles 4,000 gun possession cases per year and has room for only 5,600
prisoners. Smith likely thought hed be arraigned, released and home for dinner.
Eventually, he would trade a guilty plea for a suspended sentence and probation.
But the prosecutors in the Philadelphia District Attorneys Office made sure that
Gerald Smith never got a third chance in Philadelphias felon-friendly courts. Under
a then-new program called Operation Cease Fire, the District Attorneys Office
shipped Smiths case over to the U.S. Attorneys Office. They literally made a
federal case out of it, and Gerald Smith has not been home for dinner since. Instead, he
was placed in federal custody, awaiting trial for violating strict federal statutes on
illegal guns and drugs. With no chance of a suspended sentence or probation, the goateed
34-year-old with the winning smile and 2-year-old twins was staring at 30 years of hard
time in a federal lockup.
To Smith, a veteran defendant in Philadelphias courtrooms, it must have seemed like
he had landed in another country. Since January 1999, the federally funded Operation
Cease Fire program has hauled more than 300 of Philadelphias most egregious gun
offenders off the streets and into federal court. In 1999 alone, gun possession
indictments by the U.S. Attorneys Office here more than quintupled from 1998. Out of
173 gun cases disposed of, only one defendant was acquitted, while 149 others simply
pleaded guilty and went straight to federal prison.
Philadelphias rates of shootings and killings have been dropping steadily
since Cease Fires launch 15 months ago. And although no one can be certain
what role Cease Fire has played in making the city a safer place, its hard to
imagine how so many dangerous characters could be put out of action without making some
impact on crime. The only other program in the country like Cease Fire Richmond,
Virginias three-year-old Project Exile has been widely credited with helping
cut that citys murder rate almost in half.
Perhaps what is most curious about both Cease Fire and Exile is that they are pet projects
of the gun-loving fanatics who run the NRA the National Rifle Association. In fact,
its doubtful Cease Fire ever would have happened without prodding from the NRA.
For decades, the NRA had complained rather hollowly that guns dont kill people, that
criminals kill people. Congress, they said, should stop cooking up new restrictions on
law-abiding gun owners since federal authorities were doing little or nothing to catch and
prosecute convicted felons who violate existing gun laws.
Intellectually, they had a point why pass new laws when you dont use the ones
youve got? But the argument was always tainted by association, dismissed as little
more than a specious debating trick to help defend any number of the organizations
In the last few years, however, the NRA finally started putting some of its considerable
wealth and influence toward a federal crackdown on felons with guns and the payoff
is shaping up to be huge. By helping first to fund public outreach efforts for
Project Exile, and then lobbying Congress to find seed money for Cease Fire, the NRA has
spawned a federal gun-enforcement movement that has taken the U.S. Justice Department by
storm. In January, President Clinton asked Congress for an extra $280 million for 1,000
new prosecutors and investigators to work on gun cases. Although Clinton has been
a frequent target of the NRAs contempt and derision, this is the first time any
White House has ever sought such substantial funding to enforce gun laws, many of which
are more than 30 years old and hardly ever used.
With their history of fanatical opposition to even the simplest of gun-control measures,
the NRA and its Pennsylvania affiliates have long been political pariahs in Philadelphia,
a city that has been bleeding to death for decades from drug-related warfare. Many local
police, in particular, despise the NRA for its insane opposition to a federal ban on
Teflon-coated "cop-killer" bullets bullets designed for the express
purpose of piercing police body armor.
Yet with Exile and Cease Fire, it is quite possible that the NRA has already helped
prevent more gun violence in Richmond and Philadelphia than any gun-control law ever has.
True, the NRA may be a bunch of gun nuts. But when the NRA claims that controlling
criminals makes a lot more sense than controlling guns, the Cease Fire experience in
Philadelphia suggests that on this single point, the gun nuts may be right.
John Timoney was in the New York Police Department for 27 years. He has worked as a police
consultant to big cities on four continents. Yet he says hes never seen anything
like the gun culture among criminals in Philadelphia.
"There is clearly a gun attitude in this town that Ive never experienced
says Timoney, who estimates that Philadelphia police recover about the
same number of illegal guns each year as New Yorks police do even though New
York is five times as big.
In March 1998, when Timoney arrived here as police commissioner, Philadelphia was one of
the only major U.S. cities that was not seeing any meaningful declines in murders and
shootings. And it didnt take him long to figure out that the root cause of the
problem wasnt just out on the streets. It was also in Philadelphias
The very week Timoney arrived, a drug-related shootout in a crowd outside Penns
Palestra left one shooter dead, three innocent bystanders injured and a 21-year-old under
arrest for murder. A subsequent newspaper story revealed that the alleged killer and his
victim had both been recently convicted of possessing illegal weapons. They would have
been in jail that fateful day if not for the lenient probationary sentences theyd
gotten from the Philadelphia courts. One of their judges was even quoted as saying,
"I got him for simply carrying a gun, not using a gun. It was just a gun case."
"Just a gun case!" Timoney fumed at the time, with disgust in his voice.
"Thats disgraceful." But with gun cases in particular,
Philadelphias justice system has
been badly broken for a very long time. Unlike most states, Pennsylvania forces counties
to fund their own court systems, so money is tight and judges are under pressure to avoid
building up backlogs of cases. When someone stands accused of mere illegal possession of a
gun, judges typically hand out probationary sentences in exchange for guilty pleas
just to clear their
calendars and avoid time-consuming jury trials.
It is a kind of chronic dysfunctionalism that has plagued big-city courts for decades. The
famed Harvard criminologist, James Q. Wilson, pointed out way back in 1973: "For
those who believe in the theory of deterrence, it is a grim irony: The more crime
increases, the more pressure on court calendars, and the greater the chances that the
response to the crime increase will be a sentence decrease."
When it comes to guns, this cycle of escalating caseloads and reduced sentencing has
reached a kind of vanishing point in Philadelphia. Any potential deterrent effect has
disappeared entirely here. In fact, when a kid gets caught by the cops with an illegal gun
in Philadelphia, the worst thing likely to happen to him is that he loses his gun. If
America had fought World War II the way Philadelphia fights gun violence, this article
might well have been written in German.
So the benefits of taking gun cases out of the local courts, especially
Philadelphias courts, is not lost on John Timoney. In fact, he worked with federal
prosecutors in New York in a similar effort to work around the crowded local courts. It
was the NYPDs remarkable success in reducing gun crimes (in the absence of any new
gun laws, murders dropped by half in just a few years) that helped inspire Project Exile
But Timoney says hes not willing to grant the NRA the other side of their equation
that traditional gun control doesnt work. During recent budget hearings
Timoney assured City Council, despite some vocal skepticism, that Pennsylvania desperately
needs legislation that would restrict gun buyers to just a single gun purchase every 30
days. The objective of such "one-gun-a-month" laws is to prevent lawful gun
buyers from purchasing a dozen guns at a time, and then reselling them illegally out on
"Until you control the supply of guns in this city," he says confidently,
"you will always have a relatively high murder rate in Philadelphia."
City Council, though, has some reason to be skeptical. The problem with Timoneys
assertion, which is commonly repeated in some form by many law enforcement officials, is
that it is hard to find any evidence that its true.
For instance, Maryland passed a one-gun-a-month law in 1995. While the number of legally
sold guns has declined, the states largest city, Baltimore, continues to have a
staggering murder rate almost twice as high as Philadelphias. Marylands law
was based on Virginias one-gun-a-month statute, which passed in 1993. Subsequent
studies showed that while that flow of illegal guns exported from Virginia to other states
had been curtailed, urban gun crime was unaffected. In fact, the homicide rate in the
state capital of Richmond rocketed to its highest level ever one year after
Richmond, then, is arguably the best case of how gun law enforcement has succeeded where
gun-control laws have failed. A city of just 203,000 people, Richmond is one-seventh the
size of Philadelphia. Its ghettos are not nearly so large nor so desperate as
Philadelphias, but for its size, Richmond is a far more violent place.
Particularly in the impoverished, largely African-American sections of
Richmond, gun violence was out of control for much of the 1990s. By 1996, with a homicide
toll of 140, Richmonds murder rate was among the 10 highest in urban America
more than twice as high as Philadelphias and five times higher than New York
In early 1997, the Richmond U.S. Attorneys Office huddled with police and local
prosecutors to try and solve some of the citys gun problems, which included the
familiar scenario of crowded courts, overwhelmed judges and jails with revolving doors.
What resulted was the first and only concerted effort to federally prosecute every gun law
violator in a single U.S. city.
Federal gun laws are tough, particularly on career criminals. Any felon with an illegal
gun, for instance, typically gets five years, but a felon with three violent crimes or
narcotics in his past gets a minimum of 15 years for carrying a gun. Repeat offenders
caughtwith drugs and guns can get 30 years or more, but even with no prior record, a
gun-and-drug offender gets a mandatory five years.
For a felon, even having ammo is a federal crime. In a famous case in Boston, a notorious
gang leader was put away for 20 years after police found a single bullet in his pocket.
Although the NRA was initially wary of Project Exile, it eventually got on board behind
the effort in a big way, contributing thousands of dollars toward posters, billboards and
TV ads that proclaimed a new truth to the citys criminal community: "A gun will
get you five years in federal prison." Publicity was almost as important as the
prosecutions themselves, since the point of Project Exile wasnt to lock people up
it was to deter gun crime through the promise of
swift and certain punishment.
Hundreds of felons with guns were indicted during Exiles first year alone, and by
the middle of 1998, Richmonds overall violent crime had fallen 60 percent. A top NRA
official boasted to the Wall Street Journal that Project Exile "says with deadly
accuracy that guns are for the law-abiding. That hasnt been said anywhere else in
the country, and it is changing criminal behavior in Richmond."
Realizing it had stumbled onto a public relations gold mine, the NRA went scouting for a
bigger city to replicate and show off the program. It found Philadelphia, home of its 1998
national convention and of Mayor Ed Rendell, who was developing a national profile on
As the local U.S. Attorney Michael Stiles remembers it, Cease Fire happened very fast.
"The next thing I know Im hearing from Sen. Specter, who wants to give funds,
and Im ultimately in a room with Charlton Heston and Rendell, and Im saying,
Hold on, Im the U.S. Attorney, let me have some impact on how we construct
this program." U.S. Sen. Arlen Specter, an NRA supporter and a former district
attorney, arranged a special $1.4 million appropriation for
Stiles to hire five extra prosecutors and for the Bureau of Alcohol Tobacco and Firearms
to assign 10 extra investigators to its nine-county Eastern Pennsylvania district.
By January 1999, Operation Cease Fire was launched, with the NRA providing some cash
assistance for promotion and publicity. Charlton Heston came to town to deliver the
check and, while the TV cameras rolled, growled out a challenge to felons with guns to
Philadelphia District Attorney Lynne Abraham, who had run a similar, smaller scaled
program in the early 90s called FAST (Federal Alternatives to State Trials) said she
was glad to cooperate, but expressed utter disgust that such a program was necessary.
"This program is an indictment of the local court system, of the failure of our local
judges to live up to their sworn constitutional duties," she said. "Our judges
dont treat guns and drugs seriously, so well have federal judges do it.
A sample of Cease Fire convictions of dangerous repeat offenders shows just how the
program succeeds where the local courts have failed:
Jermaine Parks, 28, was sentenced to five years in November 1999 after police caught him
prowling in an alley, packing a loaded .45 caliber revolver. Parks had seven prior
gun-related convictions, including three as a juvenile, but had never
served more than two years in prison for any of his offenses.
Omar Best, 24, was sentenced to 105 months, almost nine
years, in November 1999 after police responded to an anonymous "man with a gun"
call at 18th and Cumberland in North Philadelphia. They recovered the firearm from Best
he tried to run away. Best had previous convictions for illegal guns, robbery and indecent
assault. He had never been sentenced to more than 23 months.
Antonio Harrison, 27, was given 193 months 17
years last September for being a felon in possession of multiple firearms. Harrison
was a suspect in a murder when detectives with a search warrant found nine different
illegal firearms in his home. Harrisons previous convictions included four
gun-related offenses for which he had never been given more than 23 months.
To a repeat offender like Gerald Smith, who may have grown
accustomed to the
discount sentencing in Philadelphias Criminal Justice Center, appearing in
federal court just a few blocks away comes as a rude shock. In the words of one
federal prosecutor, "Its 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 theyre 95 percent
sure theyll win. And federal prison inmates, unlike state prisoners, dont get
paroled or released early for good behavior.
"Sometimes," says the prosecutor, "theyll 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 hed 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 Philadelphias justice system, there are convicted killers serving far less than
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. "Theyre quick," he says.
"Generally, youre dealing with officer credibility. You know, somebody says,
That wasnt my gun, I didnt have the gun, the officer put it
on me, or That thing he saw me throw down wasnt 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. Attorneys
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. Attorneys 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 hes 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 dont want to do that,"
he adds. "But it is clear that theres been a national executive [branch]
response to a rash of firearms violence thats troubling people. I think thats
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
At 9:30 last Wednesday morning, lawyers for both sides chat in hushed tones in courtroom
17A as they await the start of Gerald Smiths sentencing hearing. Compared with the
Criminal Justice Centers 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 judges head.
From the colonial portrait on the wall to the height of the
judges 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. Smiths
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
Im 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.
"Thats pretty significant," says Christie Collins, a Richmond police
spokesperson. "Wed like to think that thats because theres less out
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
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. Attorneys 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
Attorneys Office to determine just whos 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 Attorneys narcotics division and
recommends Cease Fire cases to the federal system. "Were 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 dont go federal. For
instance, by merely threatening to take their cases to federal court, Mosees 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, its 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?
Harvards 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 countrys 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
Smiths request to be recommended for a
federal prison close to Philadelphia. The judges 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 wont have another chance to carry a loaded gun on the streets of
Philadelphia until the year 2006.
For more information see:
Philadelphia-area U.S. Attorney's Office
Full coverage of recent
gun control news developments.
Gallup Poll data on gun
The nation's leading advocacy group for gun
The nation's leading gun owners' group.
Policy group advocating gun control.
Radical right-wing pro-gun
Pennsylvania legislators coalition on gun