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What if the Gun Nuts are Right?

Could locking up bad guys save more lives than gun control?
The success of Operation Cease Fire suggests the answer is yes.

by Noel Weyrich

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 he’d 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 Attorney’s Office made sure that Gerald Smith never got a third chance in Philadelphia’s felon-friendly courts. Under a then-new program called Operation Cease Fire, the District Attorney’s Office shipped Smith’s case over to the U.S. Attorney’s 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 Philadelphia’s 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 Philadelphia’s most egregious gun offenders off the streets and into federal court. In 1999 alone, gun possession indictments by the U.S. Attorney’s 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.

Philadelphia’s rates of shootings and killings have been dropping steadily
since Cease Fire’s launch 15 months ago.  And although no one can be certain what role Cease Fire has played in making the city a safer place, it’s 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, Virginia’s three-year-old Project Exile — has been widely credited with helping cut that city’s 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, it’s doubtful Cease Fire ever would have happened without prodding from the NRA.

For decades, the NRA had complained rather hollowly that guns don’t 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 don’t use the ones you’ve 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 organization’s unpopular positions.

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 NRA’s 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 he’s never seen anything like the gun culture among criminals in Philadelphia.

"There is clearly a gun attitude in this town that I’ve never experienced before,"
says Timoney, who estimates that Philadelphia police recover about the
same number of illegal guns each year as New York’s 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 didn’t take him long to figure out that the root cause of the problem wasn’t just out on the streets. It was also in Philadelphia’s courtrooms.

The very week Timoney arrived, a drug-related shootout in a crowd outside Penn’s 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 they’d 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. "That’s disgraceful."   But with gun cases in particular, Philadelphia’s 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 Philadelphia’s 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 NYPD’s 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 in Richmond.

But Timoney says he’s not willing to grant the NRA the other side of their equation — that traditional gun control doesn’t 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 the streets.

"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 Timoney’s assertion, which is commonly repeated in some form by many law enforcement officials, is that it is hard to find any evidence that it’s true.

For instance, Maryland passed a one-gun-a-month law in 1995. While the number of legally sold guns has declined, the state’s largest city, Baltimore, continues to have a staggering murder rate almost twice as high as Philadelphia’s. Maryland’s law was based on Virginia’s 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 one-gun-a-month passed.

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 Philadelphia’s, 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, Richmond’s murder rate was among the 10 highest in urban America — more than twice as high as Philadelphia’s and five times higher than New York City’s.

In early 1997, the Richmond U.S. Attorney’s Office huddled with police and local prosecutors to try and solve some of the city’s 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 city’s 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 wasn’t 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 Exile’s first year alone, and by the middle of 1998, Richmond’s 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 hasn’t 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 gun-control issues.

As the local U.S. Attorney Michael Stiles remembers it, Cease Fire happened very fast. "The next thing I know I’m hearing from Sen. Specter, who wants to give funds, and I’m ultimately in a room with Charlton Heston and Rendell, and I’m saying, ‘Hold on, I’m 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 "make… my… day."

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 don’t treat guns and drugs seriously, so we’ll have federal judges do it. It’s outrageous."

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 after
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.  Harrison’s 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 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 see:

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.

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