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Federal sentencing for violent and drug trafficking crimes involving firearms: recent changes and prospects for improvement.

I. INTRODUCTION

Federal criminal law, like the laws of many states, requires offenders to receive increased penalties if they involve a firearm in their offense. Enacted in 1968 and codified as 18 U.S.C. [sections] 924(c) ("Section 924(c)"), this provision has been amended by Congress and interpreted by court decisions many times through the years. In 1984, the statute was amended to require at least five years imprisonment to be served consecutive to the sentence for the underlying offense, if a defendant "uses or carries" a firearm "during and in relation to" any crime of violence.(1) In 1986, drug trafficking offenses were added, and sentences of up to thirty additional years were mandated for more dangerous weapons, such as assault rifles or machine guns.(2) Further amendments in 1988, 1990, and 1994 required sentences of twenty years to life imprisonment without parole for offenders with prior convictions.(3)

A 1995 Supreme Court decision, Bailey v. United States,(4) narrowed application of the "uses" provision in the statute. But legislation enacted in the last weeks of the 105th Congress re-expanded the statute's scope to all forms of possession of a firearm "in furtherance of [the] crime."(5) Further, the legislation introduced a regime of even higher mandatory penalties for "brandish[ing]" or "discharg[ing]" a weapon, and increased penalties for repeat offenders and those that use certain types of dangerous guns.(6)

The Federal Sentencing Guidelines, promulgated in 1987 as part of the Sentencing Reform Act of 1984,(7) also contain sentence increases for offenders who involve a firearm or other dangerous weapon in many types of offenses. The sentence increases provided by the Guidelines operate under different standards and procedures than do the statutory enhancements, which give judges greater control over their operation and may make them easier to apply. Congress, however, has shown a preference for statutory mandatory minimum penalties over Guideline enhancements, and when the Guidelines and statutes conflict, the statutes "trump" the Guidelines and control the final sentence.

This Article briefly reviews empirical studies of the operation of mandatory firearm sentencing enhancements in the state courts, and their effectiveness at controlling gun crime. Data collected by the U.S. Sentencing Commission are used to determine how federal firearm penalties were implemented over the months immediately preceding and following the Bailey decision and to estimate rates of circumvention of the gun enhancements. Reasons for circumvention are discussed in light of this new data and previous research. Finally, the likely consequences of the recent legislation are discussed and options are identified for improving federal firearm sentencing to control gun crime, reduce unwarranted disparity, and achieve proportionate punishment.

A. Empirical Evaluations of Firearm Enhancements

Mandatory firearm sentence enhancements (FSEs) have been the subject of a series of empirical evaluations in the state courts. These studies have gradually clarified the laws' impact on police, prosecutor, and judicial behavior, and on prison populations and crime rates. The most general conclusion to be drawn is that passage of an FSE, in and of itself, does not guarantee a decrease in crimes involving firearms, or even a significant increase in imprisonment of gun-using criminals. While there is evidence that the laws are associated with a decrease in some types of crimes in a few states, the FSE laws taken together show little or no impact. In addition, given the complexity of factors affecting crime rates and variations in the way the laws are written and applied, it is difficult to assess what might make a particular FSE effective.

The first FSE to receive empirical evaluation was Massachusetts' 1975 "Bartley-Fox Amendment," which introduced a one-year mandatory minimum for illegally carrying a gun and a two-year minimum for committing a crime with one.(8) James Beha reported general compliance with the law among police, prosecutors, and judges, and found some evidence of a shift away from the use of firearms in assault, although no overall deterrent effect on homicide, assault, or robbery rates could be detected.(9) A few years later, declines in armed robberies and homicides, as well as gun assaults, were detected, but increases were found in non-gun assaults and robberies, suggesting that criminals were moving from gun crimes into other modes of operation.(10) Later studies with more data seemed to confirm the reductions in armed robbery and gun assaults.(11) However, the possibility remained that these were due to nationwide declines occurring at the same time, and not specifically to the Massachusetts FSE.(12)

Colin Loftin, David McDowall, and a series of associates also conducted empirical evaluations in several states.(13) The FSEs in these jurisdictions shared a number of common elements. All required substantial additional punishment for offenders who involved a firearm in their offense. Mitigations of the sentence, such as imposing probation instead of imprisonment, were prohibited. One city even prohibited plea bargains to lesser offenses.(14) To send a strong deterrent message, existence of the provisions was communicated to the public through advertising campaigns.

The results were at first disappointing. For example, while Michigan's two-year enhancement appeared to selectively increase sentences for some defendants, circumvention of the penalties was found in a significant portion of cases. The sentencing enhancements had no clear and consistent effect on the use of guns during homicides, assaults, or robberies.

More recently, however, McDowall, Loftin, and Wiersema used meta-analysis to pool results from their previous work in Michigan and Florida with new studies in Pennsylvania.(15) With the increased power and precision of pooled data, their conclusion was revised. Rates of firearm homicide were consistently reduced in various jurisdictions after implementation of firearm sentencing enhancements. Little change was detected in non-gun homicides, suggesting that the sentencing changes caused the drop in gun murders. Curiously, however, no consistent reduction was found in rates of gun assault or robbery which, the authors suggested, may have been due to the relative unreliability of crime data for assault and robbery compared to homicide.

Research in other jurisdictions and using other methods also found occasional evidence of success, but methodological limitations prevented drawing a clear conclusion that enactment of an FSE--and not some other factor occurring concurrently--was the cause of any changes in crime rates that were found.(16) Then in 1995, Thomas Marvel and Carlisle Moody used a multiple time series design to examine changes in imprisonment and crime rates, using data from nearly all the states over the past sixteen to twenty-four years.(17) With this design and data, they were able to compare each state before and after enactment of its FSE law. In addition, they were able to use other states as controls over the same time period to test whether any changes were due to general crime trends and not a result of enactment of the law.

In general, this comprehensive analysis supported the more discouraging of the previous research findings. In most jurisdictions FSEs were not associated with a decrease in gun-related crime, or even with an increase in court commitments, prison admissions, or prison populations.(18) Significant decreases in homicides were found in six out of thirty-seven states with usable data--more than the two states that would be expected by chance.(19) But why the law had this effect in these states and not in others was unclear. Decreases in crime rates were also found in some states for other crimes, such as rape and burglary, but often these were statistically insignificant, or were more than matched by states that showed increases in crime following passage of an FSE.(20) Why the law seemed to work in some places but not in others could not be determined.

The federal FSE statute ("Section 924(c)") has also been the subject of some empirical research, which will be reviewed below. But these studies have not focused on the federal law's effect on crime, because the number of homicides, assaults, and robberies prosecuted in the federal courts is simply too small to allow researchers to detect any effect in general crime statistics. Instead, analyses have focused on how the law is implemented by prosecutors and judges.

B. Implications of the Research for Federal Statutes

Together, these studies provide little support for the common-sense view of many policymakers--and much of the public--that FSEs will necessarily reduce gun crime, either through deterrence of new offenses or incapacitation of dangerous offenders. For several reasons, however, the studies do not necessarily prove that FSEs are unsound policy.

First, the number and complexity of factors affecting crime rates make it difficult for social science to isolate a single law and test its effectiveness, especially if its contribution to crime reduction is relatively small. The research clearly suggests that the crimes prevented by FSE laws are few, at best, and unpredictable. But it does not prove that no FSE law can ever have any effect. Second, even if the laws have only modest effects, their benefit may still outweigh their costs, given the property damage, injury, and death resulting from gun crimes. From an economic perspective, preventing even a few additional deaths or life-threatening injuries could justify considerable expenditure for extended incarceration of gun-using criminals. Finally, FSEs may be justified on grounds other than their utilitarian effects. In addition to deterrence and incapacitation, federal statutes list proportionate punishment as a primary purpose of sentencing.(21) FSEs might be morally justified simply as fair punishment for offenders who intentionally or recklessly endanger innocent people.

Even if crime control is not their primary justification, policymakers, nonetheless, should try to maximize the chance that FSEs will reduce crime, in light of what is known about how they are applied. The research to date suggests that the effectiveness of FSEs depends, in part, on how the provisions are written, how they are communicated to the public, and how prosecutors and judges apply them. Simply adding "tough" penalties to the books is not enough.

In this regard, Congress received an early warning that the federal firearm statutes faced some formidable obstacles. Heumann, Loftin, and McDowall, on the basis of their earliest studies in Michigan, wrote that changes proposed by the Attorney General's Task Force on Violent Crime in 1981--which eventually became the five-year mandatory penalties in Section 924(c)--might not prove as sound in practice as they seemed in theory.(22) They focused specifically on prosecutors' ability to use charging discretion and plea bargaining to avoid the enhancement, and on judges' ability to fashion sentences "absorbing" the mandatory penalty. Both of these, they predicted, would result in little change in actual sentence lengths. Further, they cautioned that mandating the same penalty in all cases involving a firearm--regardless of the presence of mitigating factors in some cases--would put pressure on prosecutors and judges to circumvent the law through sub rosa techniques in cases where the "equities" required avoidance of the harsh mandatory penalty. "Alternate policies, more systematic in addressing the question of violent firearm offenses, and affording an opportunity for the structured exercise of discretion by prosecutors and judges, strike us as more promising avenues for policy consideration."(23)

C. Concurrent Enactment of Sentencing Guidelines

Interestingly, as part of the same 1984 legislation that increased the statutory firearm enhancement, Congress addressed the role of judicial discretion and the equity of federal sentences. The Sentencing Reform Act of 1984 ("SRA") was created in part to improve the effectiveness of federal sanctions in controlling crime, but also to avoid unwarranted disparities and to improve the honesty of the sentencing process.(24) Prior to the SRA, the sentence imposed by the judge greatly exaggerated the time that a federal offender would actually serve in prison. The SRA abolished parole and established a United States Sentencing Commission, charged with the responsibility for establishing policies and practices to "provide certainty and fairness in meeting the purposes of sentencing."(25) The Commission's policies were to "reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process."(26)

To achieve these goals the Commission promulgated detailed sentencing Guidelines, which became effective on November 1, 1987. Unlike the "advisory" Guidelines found in some states, the federal Guidelines are mandatory; judges are not free to ignore them. Some people call Guidelines like those in the federal system "presumptive," because sentences must be within the Guideline range, "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."(27) These departures can then be appealed by either the defendant or the government.

The Commission did not undertake original research to predict the crime-control effectiveness of the sentences it proposed. Rather, the Guidelines were based on an empirical analysis of the factors associated with federal sentencing in the years just prior to their development, specifically, a large sample of cases from 1985.(28) In essence, the Commission sought to crystallize and make uniform throughout the system the most typical sentencing practices then in place. From these findings--along with its own sense of the seriousness of different types of conduct, as well as consideration of the relevant statutory provisions--the original Commission fashioned Guideline adjustments for firearms that remain largely unchanged today. The possession or use of firearms became one consideration among many that contributed to the severity of an offender's sentence.

The Commission believed that this approach fulfilled several purposes of sentencing at the same time.(29) Sentences would be scaled to the overall seriousness of the crime, thus achieving carefully calibrated proportionate punishment. The sentence increases for firearm possession and use would send a deterrent message. And, in combination with provisions that increase sentences for offenders with criminal records, the most dangerous offenders would be targeted for lengthier incarceration. In short, the firearm increases were incorporated within the Guidelines' overall approach to sentencing. However, as described in greater detail in the next section, to accommodate the statutory penalties the Commission created several idiosyncratic rules for offenders whose convictions included Section 924(c).

II. COMPARING AND INTEGRATING THE TWO TYPES OF ENHANCEMENTS

The federal courts now have two overlapping and, in some respects, inconsistent sets of rules for firearm sentencing. As shown in Table 1, the statutory and Guidelines FSE provisions differ in important ways. Because the overlapping provisions make the law of sentencing for firearms somewhat complicated, a brief overview is in order.

Table 1: Differences Between Statutory & Guideline Firearm Enhancements
 Effect on sentences

18 U.S.C. Fixed prison term of at least
[sections] five years (more for some
924(c) types of use and weapons and
 for repeat offenders)served
 consecutively to the punishment
 for the underlying crime.

Sentencing Guideline "offense level"
Guidelines increased by two or more points,
 increasing imprisonment ranges
 proportionately by 25 to 100
 percent over otherwise
 applicable prison terms.

 Procedures and evidence
 required

18 U.S.C. Defendant must be convicted
[sections] of [sections] 924(c) through a
924(e) guilty plea or a guilty
 verdict at trial "beyond a
 reasonable doubt."

Sentencing Increase applied by judge at
Guidelines the sentencing hearing if
 weapon's presence or use is
 proved to be part of the
 defendant's relevant conduct
 by a "preponderance of the
 evidence."


A. Differences Between the Statutes and Guidelines

In the Guidelines system, a crime's seriousness is measured by an offense level which, along with a criminal history category, determines in which cell of the Sentencing Table the defendant falls.(30) Each of the 258 cells of the Table--one for each of the forty-three offense levels and six criminal history categories--contains a range of months of imprisonment in which the judge must sentence the offender, unless a departure can be justified. The Table is designed so that a one-point increase in either the offense level or criminal history category generally increases the imprisonment length by the same amount. At the lower levels of the table the increases are steep--about fifty percent each step. But they taper down to about twelve percent each step as the offense levels increase.

Several Guidelines contain "specific offense characteristics" ("SOCs") that increase an offender's offense level for firearms or other "dangerous weapons," such as knives. Offense levels are also increased depending on whether a victim is injured, and on numerous other factors affecting the seriousness of the crime. The exact way that a weapon affects the offense level depends on the particular Guideline. Several Guidelines have "tiered sanctions" for different types of weapon use. Sentences are enhanced most when a weapon was "discharged" and somewhat less when it was "otherwise used," "brandished," "displayed," or its use was "threatened."(31) The amount of offense level increase associated with each of the different types of use also varies somewhat from Guideline to Guideline.(32) Other Guidelines, most notably the Guideline for drug trafficking, provide only a two-level offense increase when a weapon was in any way "possessed."(33)

For example, in robbery cases, sentences are increased by seven offense levels if a firearm was discharged, and by five levels if it was brandished.(34) A seven-level increase more than doubles the minimum of the imprisonment range. For drug trafficking cases, a single two-level increase is provided whenever a dangerous weapon (including a firearm) is possessed, regardless of how it may have been used.(35) A two-level increase generally raises sentences by about twenty-five percent.

By using offense levels and the Sentencing Table to determine the imprisonment range, the Sentencing Guidelines punish firearms proportionately, as a percentage increase over the time imposed for the underlying crime. In contrast, Section 924(c) has increased sentences by a fixed amount of years (until a recent change that is described in detail below). For example, carrying a pistol adds five years, regardless of what the sentence would be without it. As a result of this difference, whether the Guidelines or the statute results in the longer sentence depends upon the seriousness of the crime. For example, if a weapon is possessed during a less serious drug trafficking offense, the Guideline increase--roughly twenty-five percent--is generally shorter than the five-year statutory penalty. In more serious drug offenses, the SOC can result in the longer sentence.

Empirical analysis shows that in recent years, on average, SOC increases for possession of a weapon in drug trafficking cases, which are by far the most frequently applied, were shorter than the statutory enhancement--only twenty-eight months.(36) Among robberies, which involve the second most commonly applied weapon SOC, the average increases were similar to the statutory enhancement for discharging (60.4 months) or otherwise using a weapon (55.6 months), but dropped to 38.5 months for brandishing.(37) The SOCs in other violent offense guidelines were applied to far fewer offenders, and were less severe than the robbery increases, with the exception of discharge of a firearm during an aggravated assault, which resulted in an average sentence increase of 30.3 months.(38)

Apart from their effects on sentence lengths, some of the most important differences between statutory and Guideline penalties are procedural. Statutory penalties apply only when a defendant is charged and convicted of a relevant FSE provision such as Section 924(c). The offender must either plead guilty or be found guilty at trial beyond a reasonable doubt. In contrast, under the Guidelines' "relevant conduct" rule, much of an offender's "real offense" is taken into account at sentencing--regardless of whether it was the subject of a count of conviction--as long as some nexus to a count of conviction can be established. For example, in drug trafficking cases, the "relevant conduct" rule brings all criminal activity that is "part of the same course of conduct or common scheme or plan" as an offense of conviction within the scope of factors to be considered at sentencing.(39)

Thus, SOCs apply whenever a judge decides at a sentencing hearing--where the Federal Rules of Evidence do not apply--that a weapon was possessed or used during the offense. The standard of proof is a preponderance of the reliable evidence. The Guidelines neither require that a weapon be charged in the indictment, nor that the defendant be convicted specifically of weapon use. Because the standard of proof is lower and the conduct required is somewhat different, Guideline SOCs can be applied even if a defendant is acquitted of a Section 924(c) count in a multi-count indictment.(40)

Application notes to the drug trafficking Guideline appear to establish an especially low threshold for application. They state that any weapon that is present at a location where offense conduct occurs triggers the increase, unless is it "clearly improbable that the weapon was connected with the offense."(41) This appears to place the burden on the defendant to disprove that the gun was related to the crime, and several circuits have so held.(42)

B. Integrating the Overlapping Provisions

The Commission was faced with developing coherent sentencing guidelines for offenders possessing or using guns, some of whom would have convictions involving a statutory firearm enhancement and some of whom would not. The challenge was to integrate the statutory provisions with the Guideline SOCs in a way that would achieve the best possible proportionality of punishment. At the same time, the Commission was concerned with other goals of sentencing reform--honesty and uniformity of punishment--as well as the effectiveness of federal sentences for achieving their other statutory purposes i.e., deterrence, incapacitation, and rehabilitation of offenders. Clearly, balancing these sometimes competing goals and mandates would require ingenuity and some difficult compromises.(43)

As a start, the Guidelines provide that a defendant's offense level should not be increased by a weapon SOC if he or she was convicted under Section 924(c), since the statute will already have taken the firearm into account. Thus, although some defendants are eligible for either of the two types of increase, no defendant receives both of them for the same conduct.(44) Recall also that whenever a statute calls for a sentence outside an offender's guideline range, the statute "trumps" and the Guideline range is overridden.

The issue then becomes, how should offenders' sentences be affected by the type of enhancements they receive? Should two defendants who appear, by a preponderance of reliable evidence, to have engaged in similar conduct receive different sentences because one of them was charged and convicted under Section 924(c) and the other was not? Would such an approach shift sentencing discretion from the judge to the prosecutor? Does the fact of conviction make the crime more serious? Does treating the two differently constitute unwarranted disparity?

It should be apparent from the explanations and data in the section above that the choice between the two FSEs is almost always significant, and often highly so. While in robbery it has often been possible for offenders who discharge or otherwise use weapons to receive sentences as long or longer through application of Guideline SOCs, in the most common cases conviction under the statute will result in substantially longer sentences. Thus, prosecutors have considerable influence over sentences through their discretion to bring or decline weapon charges and their ability to dismiss gun counts.

The influence of prosecutorial discretion in cases involving firearms in some respects is unique in the Guideline system. The Commission adopted many provisions throughout the Guidelines that were intended to reduce the impact of charging and plea bargaining decisions. In addition to the relevant conduct rule discussed above, grouping rules for related counts and cross-references among Guidelines were developed to minimize the importance of the number and nature of conviction counts.(45) The grouping rules guarantee, for example, that an offender convicted of both a substantive crime and conspiracy to commit that crime is sentenced similarly to an offender convicted only of the substantive offense.(46)

Offense levels were also set to prevent, to a great extent, statutory minima and maxima from trumping the Guideline range and interfering with operation of the Guidelines. For example, the drug trafficking Guideline sets base offense levels for various amounts of drugs that correspond to prison terms just above the lengths required by statute. This approach is difficult for firearm SOCs, however, because their effect depends on the base offense level for the underlying crime. There is no set SOC increase that would necessarily correspond to the fixed five-year minimum enhancement called for by the statute.

Finally, rules were incorporated instructing judges how to combine concurrent and consecutive prison terms for various counts so that the total prison term would be the one required by the Guidelines.(47) This was called the "combined Guideline" approach, and it helps ensure that-the final sentence is determined in the manner designed by the Commission, and not by the particular way that an offense was charged. Convictions under Section 924(c) were treated differently, however. Section 924(c) counts were excluded from the grouping rules,(48) and from the rules governing imposition of concurrent versus consecutive sentences.(49) For offenders with Section 924(c) convictions, the statutory penalty is simply added to the sentence for the underlying offense, regardless of how this affects the weight given to the firearm in the total sentence.

Clearly, the overlapping statutory and Guideline provisions greatly complicate the law of firearm sentencing, and create anomalies and disparities in the Commission's scheme of proportionate punishment. These are compounded to some extent--or at least not fully ameliorated--by the original Commission's own rules about how total sentences should be determined for offenders with Section 924(c) convictions.

Because of the interdependence among the statutory and Guideline provisions, changes in one can have consequences for the other. The scope of Section 924(c) has shifted frequently over the decades, and again in the past three years. Later sections describe these developments and discuss how they have affected application of the statute, and their implications for the Guidelines. But first, we turn to empirical research on how the federal FSEs have been applied in practice.

III. FEDERAL FIREARM ENHANCEMENTS IN PRACTICE

A. Evidence of Under-utilization

Research in the state courts has suggested that in some jurisdictions firearm increases are not invoked in some cases in which they legally could apply. A series of field studies and statistical analyses of plea bargaining and sentencing in the federal courts subsequent to initial implementation of the Guidelines found a similar pattern of circumvention of both the statutory and Guideline FSEs. Recent research with an Intensive Study Sample of 1995 cases, reported here for the first time, has reconfirmed this finding.

The Commission's evaluation of the early implementation of the Guideline system, published in 1991, uncovered circumvention of both the statutory and the Guideline enhancements. It reported that Section 924(c) was applied in about forty-one percent of the bank robbery and drug trafficking cases in which it appeared warranted.(50) Subsequent analysis by researchers with the Department of Justice's Bureau of Justice Statistics determined that evidence problems explained why the statutory penalty was not sought or applied in some cases, but in other cases the reasons were unclear.(51)

In a series of field studies of plea bargaining under the Guidelines, Professor Stephen Schulhofer, a long-time observer of plea bargaining in the federal courts, and then-Commissioner Ilene Nagel found that Section 924(c) was a common subject of "charge bargaining," in which a prosecutor agrees to dismiss a gun count or to never bring it in the first place. Furthermore, a new form of plea bargaining--"fact bargaining"--was uncovered, in which a prosecutor and defense counsel agree that a firearm or other factor relevant to the Guideline sentence would be ignored for Guideline purposes, even if this involved withholding the information from the court in some cases.(52) Probation officers have also reported that fact bargaining remained a common occurrence as recently as 1995.(53)

To determine whether this pattern of under-utilization was continuing (and to explore a number of unrelated questions) the Commission developed an Intensive Study Sample (ISS) of a randomly selected five percent of cases sentenced in FY1995. Data were collected based on information provided by probation officers in pre-sentence reports. Probation officers are not legally bound by factual stipulations or plea agreements, and are instructed to report a complete description of the defendant's criminal conduct to the court. Of course, they do not always receive full information, and need not be concerned with what could be proven at trial. Their judgments may be based on the preponderance of reliable evidence. But the evidence in the pre-sentence report is generally accepted as the most accurate information available to researchers interested in offender real offense convictions.

Using this best available information, Commission staff determined exactly how firearms were involved in the crime. They determined whether the defendant, or one of his or her accomplices, actually used, carried, or possessed a weapon during the offense in a way that qualified the defendant for one of the FSEs. Figure 1 briefly describes the different categories of firearm involvement used to classify cases for the study and the legal consequences of each. Using the Commission's regular monitoring dataset, it was then determined which, if either, of the enhancements was actually applied in each case.

Figure 1

DIFFERENT TYPES OF FIREARM INVOLVEMENT

These categories were used to classify cases for the ISS portion of this report:
USE Involves active employment of a weapon as an
operative factor during the offense. Qualifies offender for
[sections] 924(c) both before and after Bailey.

Discharge A firearm was actually fired or
 attempted to be fired.

Brandish Firearm displayed openly and visibly
 with the intention of scaring the victim.

CARRY Involves transporting a weapon on the person or
in a vehicle or container during the offense. Qualifies
offender for [sections] 924(c).

On person Firearm carried by a participant, e.g., in
 the clothing or pockets.

Within reach Firearm readily accessible and available
 for use, e.g., a gun under a car seat.

Not accessible Firearm transported but not accessible,
 e.g., a gun was in a locked trunk of a
 car. These cases were not eligible for
 [sections] 924(c) in some courts prior to
 Muscarello.

POSSESS Involves dominion and control over firearm,
determining where it is kept and how used. It does not
require that the weapon be carried or legally owned by the
defendant.

Possess to Firearm possessed in a manner that
facilitate appeared to facilitate the offense,
crime e.g., large numbers of weapons, loaded
 weapons, or weapons in close proximity
 to drugs. This type of involvement
 qualified offenders for [sections] 924(c) in some
 courts prior to Bailey.

Possess Firearm present in a location where
 offense conduct occurred "unless it is
 clearly improbable that the weapon was
 connected with the offense," (USSG
 [sections] 2D1.1, Application note 3.) The drug
 guideline SOC could be applied to these
 cases.

PERIPHERAL If a firearm was present but it appeared
improbable it was connected to the offense (e.g., if it was
part of an antique collection) it was not counted because the
defendant would not be accountable for it under either the
statutes or the guidelines.


Figure 2 shows the percentage of defendants who actually received an SOC or a statutory penalty among all those who appeared to be legally accountable for a firearm. As shown in the left-hand column, of the ninety-nine cases in the sample in which a gun was used, about sixty-five percent received some sort of sentence increase, with thirty percent getting the SOC and thirty-four percent getting the statutory increase.

[Figure 2 ILLUSTRATION OMITTED]

Because the ISS cases were selected randomly, they can provide an unbiased estimate of the frequency that particular characteristics appeared in the total caseload for the year. Of course, these estimates have margins of error based on the size of the sample and the frequency of the characteristic. The estimate above has a margin of error of plus or minus about ten percent. In other words, it is ninety-five percent certain that the true proportion of all defendants accountable for use of a firearm who actually received a Section 924(c) increase is between twenty-four to forty-four percent. Thus, while most defendants receive some type of additional punishment, the majority are not convicted and sentenced under Section 924(c).(54)

The columns in Figure 2 show that as the degree of weapon involvement decreases, the likelihood of being convicted under Section 924(c) also decreases. The second set shows that of the 10.4 cases in our sample that involved defendants who carried a firearm, a little over half received either an SOC (28%) or a Section 924(c) increase (27%). The third set shows cases in which a firearm was possessed in a way that facilitated the offense.(55) As described below, the circuits were split during the year these cases were decided over whether a Section 924(c) conviction was permissible under these circumstances. Thus, only a small number (18%) of these cases received a Section 924(c) increase, Although, these defendants were more likely to receive an SOC (37%).

In summary, these results are consistent with studies over the previous decade showing that firearm enhancements are not applied in all the cases where they appear legally warranted. In fact, these data suggest that Section 924(c) has been applied in only a minority of cases in which an offender actively employed or carded a weapon. The Guideline SOC adjustment is applied somewhat more frequently, but still not uniformly.

B. Why Are the Enhancements Sometimes Circumvented?

To investigate why Section 924(c) charges and Guideline SOCs are applied in only a portion of qualifying cases, we examined prior research and compared the cases in our sample that received the enhancement with those that did not. Several reasons for under-utilization emerged.

First, there are sound evidentiary reasons why prosecutors may decline to bring or press Section 924(c) charges. While probation officers and judges can make their determinations based on all reliable evidence, prosecutors must be concerned with what could be proven before a jury at trial. Problems of proof, such as unsympathetic or uncooperative witnesses, may make the prosecutor reluctant to press for a Section 924(c) conviction, even if the evidence suggests that a gun was involved. Proving to a jury beyond a reasonable doubt that a firearm was used or carried "during and in relation to the crime" may be impossible, or at least more difficult, than proving to a judge that a Guideline SOC is appropriate. Evidence problems probably play a lesser role in explaining why Guideline SOCs are not applied, given the relaxed standards of proof and evidentiary requirements for Guideline factors, but they may still play a role in some cases.

Second, although Department of Justice policies discourage plea agreements that result in sentences that fail to represent a defendant's most serious "readily provable" criminal conduct,(56) prosecutors may still use the enhancements as bargaining chips. Offers to drop Section 924(c) or to exclude a weapon from Guideline computations may be used to secure defendants' guilty pleas or their assistance in the prosecution of other persons. Of the 104 ISS cases in which Commission records show a defendant was initially charged with a Section 924(c) count, the charge was dismissed in thirty-three cases. In twenty-eight of these, a plea agreement was involved. The charge may also be a subject of pre-indictment bargaining, but the Commission has no records with which to study these agreements.

It seems likely that use of the FSEs as bargaining chips is a major reason for circumvention. Why these incentives are needed is not clear, given that the Guidelines and statutes contain explicit incentives for these purposes. The "acceptance of responsibility" Guideline provides a two or three offense level decrease for defendants who, among other considerations, plead guilty in a timely manner.(57) Policy statement Section 5K1.1 encourages downward departure from the otherwise applicable Guideline range for defendants who provide substantial assistance in the prosecution of other persons, based on a motion for departure from the government.(58) In addition, 18 U.S.C. [sections] 3553(e) and Rule 35(b) of the Federal Rules of Criminal Procedure permit waiver of any applicable statutory minimum penalty in these circumstances. These explicit incentives, built into the Guideline structure, were designed to standardize adjustments for defendants who plead guilty and cooperate. Use of charge and fact-bargaining as incentives on an ad hoc basis could lead to unwarranted disparity.

Third, prior research has found that prosecutors and judges are willing to avoid weapon enhancements if they feel the sentence for a particular defendant is long enough without it.(59) As predicted from the state research reviewed above, the equities of some situations call for absorption or avoidance of the firearm enhancement. Avoidance is especially common if the defendant did not personally use or carry the gun. Although defendants are legally responsible for a co-participant's use of a gun if it is reasonably foreseeable as part of their joint undertaking, in only one of the twenty-five cases in the ISS where an accomplice used or carded a weapon, but the defendant did not, was the defendant convicted under Section 924(c). The low rate of punishment for an accomplice's gun use may reflect the difficulty of proving liability for a co-conspirator's conduct. But it may also reflect reluctance to punish offenders for the conduct of others.(60)

Equity concerns also appear common in drug cases involving firearms. The ISS data show that qualified drug offenders are convicted under Section 924(c) a smaller portion of the time (17%) than are violent offenders (41%). Using the Commission's full monitoring dataset, we also found that cases with lengthy mandatory sentences based on the quantity of drugs were less likely to receive a firearm SOC than were cases involving smaller quantities of drugs.(61) This avoidance of the additional firearm penalty in drag cases is consistent with public opinion polls and surveys of judges that suggest that, given the high sentences mandated for the drags alone, additional punishment for a firearm is considered overkill.(62)

These findings raise serious questions for policymakers concerned with both crime control and fairness in sentencing. If the enhancements are not applied, incapacitation is not accomplished and their deterrent effect could be diluted. Inconsistent application undermines the system's ability to achieve proportionate sentencing and avoid unwarranted disparities among similarly situated offenders. In the remainder of this Article, after review of the effects of some recent changes to the scope of Section 924(c), we consider what system of firearm sentencing enhancements is most likely to accomplish both the purposes of sentencing and the goals of sentencing reform.

IV. RECENT CHANGES AND THEIR EFFECTS

A. The Effects of Bailey and Muscarello on Application of the Enhancements

Following changes to Section 924(c) in 1984 and 1986, the statutory enhancement applied whenever an offender "uses" or "carries" a firearm "during and in relation to" a drug trafficking or violent offense.(63) Judges in different circuits came to understand these terms in different ways. Some courts interpreted "uses" broadly: if offenders possessed firearms in a way that the trier of fact could infer had facilitated the crime, based on factors such as the gun's proximity and accessibility during the criminal conduct, a conviction for use of the gun could be supported.(64)

For example, a loaded gun kept in the same room in which drugs were stored might be considered "use" of the gun to protect the drugs. Other courts appeared to apply an even broader definition,(65) But other circuits held that the mere presence of a gun, even in proximity to drugs, drug proceeds, and other paraphernalia of the drug trade, was insufficient to support a conviction under Section 924(c) absent evidence that the weapon was actually used.(66) The U. S. Supreme Court granted certiorari in Bailey to clear up these perplexities, which were leading to disparate application of the statute.(67)

In Bailey v. United States,(68) the Court concluded that "uses" should be given its ordinary or natural meaning.(69) Given the term's place within the statute, the court held that "uses" had to mean more than mere possession, or else the "carries" prong would be mere surplusage.(70) Further, if Congress had intended to cover mere possession, it could have so provided, as it did in other firearm statutes. Thus, "uses" was limited to those instances in which there was "active employment" of a firearm.(71) The gun must have been an operative factor in the offense. The offender had to have fired or attempted to fire the weapon, brandished, or displayed it, referred to the firearm in a way intended to threaten someone, or used the gun in some other way (e.g., to strike a person or as barter for drugs).(72) Simple possession of the firearm, even in a way that might appear to have facilitated the crime, was not enough.(73)

Based on the number of ISS cases in the category "possessed to facilitate the crime" from Figure 2, we estimate that between 1500 and 2250 cases in a typical year were disqualified for Section 924(c) by the Bailey decision.(74) (Indeed, subsequent to the decision the courts received thousands of petitions from incarcerated inmates seeking to overturn their convictions.) Since many, but not all, judges were applying Section 924(c) to these offenders prior to Bailey, we would expect the decision to reduce the annual number of Section 924(c) convictions by some fraction of this amount. To study how application of both the statutory and the Guideline FSEs were actually affected, we used the Commission's monitoring dataset to examine all felony and serious misdemeanor violent and drug trafficking offenders sentenced in the federal courts from October 1991 through September 1997.(75) We studied the monthly rate of application of both the statutory and Guideline enhancements during this time period.

Figure 3 shows the monthly rate of defendants receiving either a Section 924(c) or a Guideline firearm increase for all crimes of violence or drug trafficking.(76) Because the population used in this analysis includes all drug and violent crimes--not only those that we know actually involved a firearm--some of the trends could reflect shifts in the number of cases in which firearms were used, carded, or possessed. But changes closely associated in time with a legal change, such as the Bailey decision, are likely to be a result of the change in the law.

[Figure 3 ILLUSTRATION OMITTED]

Bailey was decided on December 5, 1995, as indicated by the vertical dashes on Figure 3. Prior to the decision, the statutory penalty rate fluctuated between about seven and ten percent, but showed no long-term upward or downward trend. At the time of the decision, the rate drops, fluctuating around five percent through the remaining months. The drop in convictions for Section 924(c) at the time of Bailey clearly indicates how substantially the decision limited the statute's scope.(77)

From the beginning of the time line, SOC adjustments were applied more frequently than the statute. The percentage of cases receiving a firearm SOC increased starting in 1993 and continued through the time of the Bailey decision (perhaps reflecting the work of Department of Justice Task Forces created to target firearms and violent street gangs). Following the decision, the adjustments reached an all-time high in April 1996. But curiously, the rate failed to maintain a consistent increase corresponding to the reduced use of Section 924(c), even though many defendants no longer eligible for Section 924(c) became eligible for the Guideline adjustment. The reasons for this are unclear. That some courts interpreted use as virtually synonymous with possession prior to Bailey, and were thus overruled by the decision, may have affected their application of the Guidelines, even though the Supreme Court noted in its opinion that the Guideline SOC would continue to apply in cases where the decision precluded conviction under Section 924(c).(78)

In 1998, the Supreme Court again interpreted Section 924(c) in Muscarello v. United States.(79) The issue concerned whether "carry" applied to any transportation of a firearm or, alternatively, only to carrying on one's person, or in some manner that made the weapon immediately accessible. The court ruled that the statute's scope included any transportation of the weapon during and in relation to a crime. From the ISS data we can conclude that this decision will affect far fewer cases than the Bailey decision. Only four cases in our sample involved transportation of a weapon by defendants in an inaccessible manner, while five involved transportation by co-defendants. This suggests the number of cases that would have been excluded from the scope of the statute if the court had decided the other way is relatively small--fewer than 200 a year.

B. P.L. 105-386, "An Act to Throttle Criminal Use of Guns"

Following the Supreme Court's Bailey decision, several bills were introduced in Congress to expand the scope of Section 924(c) beyond only cases where offenders actively use or carry a weapon. Senator Helms introduced Senate Bill 191, which would have added "possession" to the list of acts for which defendants would receive a five-year mandatory sentence enhancement. This may have expanded the scope of the statute beyond the types of possession found to be "use" prior to Bailey. It may have made the scope, of the statute similar to that of the Guideline SOCs for possession. In addition, the Helms bill proposed to increase the minimum enhancement to ten years if the firearm was discharged.

An alternative proposal, House Bill 424 would have subsumed the "use" and "carry" prongs by simply replacing them with "possession," but only if the possession were "in furtherance of the crime." The Committee Report accompanying the bill stated that the "in furtherance of the crime" requirement was meant to be slightly more stringent than the :standard in the current provision ("during and in relation to" the crime) and in the Guideline SOC. "The government must clearly show that a firearm was possessed to advance or promote the commission of the underlying offense. The mere presence of a firearm in an area where a criminal act occurs is not a sufficient basis for imposing this particular mandatory, sentence."(80)

The Senate and House bills differed in other ways. The House bill would have increased the mandatory minimum term to ten years for possession. If the firearm were brandished a fifteen-year term would be required, and if it were discharged a twenty-year penalty would apply. Both the House and Senate versions required thirty-year terms for certain particularly dangerous types of weapons, such as machine guns. Repeat offenders would also have been subject under both bills to a doubling of penalties for possession, and substantial increases up to life in prison for other types of use.

The final Act, adopted as P.L. 105-386 and signed into law by President Clinton on November 13, 1998, combines elements of the House and Senate bills.(81) It adds "in furtherance of any such crime, possesses a firearm," to the list of acts for which defendants can be convicted under Section 924(c). It also retains the requirement that the use, carrying, or possession be "during and in relation" to the crime.(82) The addition of possession in furtherance of the crime effectively brings back within the scope of the statute those 1500-2200 cases per year that Bailey had excluded. The legislative history of the Act suggests that "possesses" requires only that a defendant have "dominion and control" over the weapon; it is not necessary that he or she be the legal owner of the gun. Further, the common law concept of "constructive possession" could cover some defendants who did not directly control the weapon.

The Act retains the current five-year increase for cases of use, carrying, or possession of most firearms. But rather than a fixed five-year increase, the statute now calls for an increase of not less than five years, in effect making the statutory range anywhere from five years to life. The mandatory term is increased to not less than seven years if a gun is brandished, and not less than ten years if it is discharged. The term "brandish" is defined as "to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person."(83) This is a broader definition of "brandish" than the one found in the Guidelines.(84) On the other hand, as described above, "possession in furtherance of the crime" appears to be a more narrow definition of possession than the one found in the application notes to the drug trafficking Guideline.(85) It appears to require the government to prove a nexus to the crime, rather than presuming it from the mere presence of a weapon.

The Act also calls for minimum terms of ten years if the firearm was a short-barreled rifle, shotgun, or semiautomatic assault weapon. Thirty-year terms are required if it was a machine gun or destructive device, or was equipped with a silencer or muffler. These types of weapons are much less common in the federal courts.(86) Offenders with previous convictions under the statute are subject to minimum terms of at least twenty-five years. And, finally, if a repeat offender's current offense involves one of the more dangerous weapons or a silencer, the minimum sentence is life in prison.(87)

The legislative history of the Act makes clear that Congress was convinced the Bailey decision was a setback for law enforcement and crime control. At the Senate hearing on Senate Bill 191, the decision was characterized as getting "soft on crime." Senator Helms testified that: a felon who "hides a weapon in a crack house when he hears the cops are coming will get off with a slap on the wrist."(88) The proposed bill was described as restoring a much-needed tool for prosecutors, and as ensuring that gun possessors would get a minimum of five years in prison. (The fact that the statute calls for a five-year addition to the sentence for the underlying crime was often not made clear.) Evidence of the longstanding under-utilization of the statute prior to Bailey was not presented, and the reasons for circumvention were not discussed, even though some of these reasons could apply with even greater force to the amended statute.(89)

In its deliberations over the legislation, Congress apparently received no data on the length of sentences offenders who possess guns were receiving subsequent to Bailey. Nor were these sentences empirically evaluated in light of the purposes of sentencing and the goals of sentencing reform.(90) Testimony at the Senate hearing on the Guidelines approach to firearm sentencing was quite limited. One witness testified that the Commission should be directed to implement changes to fill any gaps left by the Bailey decision.(91) But another witness--citing judges' ability to depart from the Guidelines and the relatively small SOC increases applicable to first-time marijuana traffickers--testified that the Guideline enhancements are "relatively minor and have little or no impact on the sentence that is imposed."(92)

In the final analysis, Congress amended Section 924(c) after hearing little evidence on the relative merits of statutory compared to Guideline firearm enhancements, or to ways that the Guideline system might be used to address Congress's concerns. During floor debates in the House, Congressman Scott urged that "the Sentencing Commission should review these crimes and deliberate without politics and without political considerations to assess a reasonable penalty" and declared "[t]hat is obviously not what we are doing today."(93)

C. Empirical Data on Firearm Sentences After the Recent Changes

Sentencing Commission data for FY 1998, a period following the Bailey decision but before the effective date of P.L. 105-386, show that offenders who received a firearm SOC under the Guidelines were receiving substantial sentences. Of course, as discussed above, the Guideline increases are circumvented in some cases as are the Section 924(c) enhancements. And judges depart from the Guidelines in some cases, as they do in some cases convicted under Section 924(C).(94) But the Guideline system appeared to be resulting in lengthy imprisonment for gun-using offenders even in the absence of an expansive Section 924(c). Whether the imprisonment was lengthy enough to achieve Congress's crime control goals is a policy question to which we will turn in the final section.

As shown in Table 2, the average Guideline sentence for drug trafficking offenders who received the two-level firearm SOC in FY 1998 was 139 months. Among robbers, those who discharged a weapon received an average sentence of 118 months, while those who brandished, displayed, or possessed a weapon averaged 98 months. Cases involving aggravated assault with discharge of a weapon averaged sixty-nine months, while those involving brandishing averaged thirty-eight months--similar to the sentences imposed for other violent offenses involving firearms.(95) It should be noted that due to the nature of federal jurisdiction, a large proportion of defendants sentenced in the federal courts for aggravated assault, manslaughter, and other violent crimes are Native Americans committing offenses on tribal lands.

Table 2: Current and Projected Sentences for Offenses Involving Firearms
 Current Average
Offense Involving Firearm Guideline Sentence

Drug trafficking; gun possessed 139 months

Robbery; gun discharged 118 months
 gun brandished 98 months

Aggravated assault; gun discharged 69 months
 gun brandished 38 months

 Sentence If Convicted
Offense Involving Firearm Under Amended Statute

Drug trafficking; gun possessed 170 months

Robbery; gun discharged 178 months
 gun brandished 144 months

Aggravated assault; gun discharged 159 months
 gun brandished 110 months


As shown in the right-hand column of Table 2, if these cases had received the penalties required by the new legislation instead of the Guideline SOC, sentences would be substantially longer, particularly for aggravated assault where sentences would be more than doubled when a weapon was discharged and almost tripled when brandished. Drug trafficking sentences, currently the longest on average, would increase twenty-two percent and would remain among the most severe.

Which of these two types of sentence represents the best policy is a complicated question. It requires: 1) comparison among crimes to determine if the punishments are proportionate to each crime's seriousness; 2) analysis of whether longer sentences will deter additional crimes; and 3) prediction of whether these offenders would commit new crimes if free during the additional months they will now be imprisoned under the statute. Evaluating which sentences are best also requires study of how the different types of enhancements are likely to be applied in practice. And finally, to be true to the goals of sentencing reform, we should consider which type of sentence best contributes to honesty, reduces circumvention, and avoids unwarranted disparities. These will be the concerns of the final section.

V. DEVELOPING FAIR AND EFFECTIVE FIREARM ENHANCEMENTS

There can be no doubt about the importance of reducing the use of guns in crime. Franklin E. Zimring and Gordon Hawkins have argued cogently that America's crime problem is in large part a problem with lethal violence, and that the widespread use of guns is a major contributing factor to our extraordinarily high rates of homicide compared to other industrialized nations.(96) As the empirical research shows, however, adding an FSE or increasing its severity will not necessarily lead to a reduction in crime. But this does not mean FSEs are necessarily bad policy. The bulk of criminological research suggests that the added deterrent value of an increase from ten to fifteen years, for example, is probably marginal. Still, the common-sense view that a significant penalty enhancement for using a gun may have a crime control benefit--particularly if clearly communicated to the potential offender population--cannot be considered disproved.(97) Nor does it seem implausible that keeping certain offenders behind bars longer--particularly young repeat offenders--will prevent crimes that they would commit if free.

Perhaps the best reason for increased sentences for gun-using criminals is that they are more culpable and their crimes are more harmful. This "just desserts" rationale is the central organizing principle of the sentencing Guidelines and clearly it can justify increased punishment. But it also highlights the importance of proportionate punishment carefully calibrated to the seriousness of the offense, and uniform punishment for offenders who commit similar crimes. Imposing different sentences on offenders who engage in similar conduct would be as unfair as imposing the same sentence on offenders who do not use guns as on those who do.

Neither crime control, nor just punishment, nor uniformity can be achieved if FSEs are circumvented or applied inconsistently. Given the repeated studies finding widespread circumvention in recent years, this is not a hypothetical concern. For the reasons reviewed below, it seems likely that Congress could have better achieved its crime control goals, without compromising sentencing reform, if it had worked with the Commission to amend the firearm SOCs found in the Guidelines instead of expanding Section 924(c). The Commission has invited congressional directives to examine or amend the Guidelines,(98) and it could integrate increased penalties for firearms with the overall structure of the Guidelines. Using mandatory minimum statutes for firearm sentencing enhancements seems like performing surgery with a butcher knife when a scalpel is at hand.

First, there are practical obstacles to application of the statute that the new legislation will not overcome. It does not address evidentiary problems of proof--the difficulty of persuading a jury beyond a reasonable doubt that the defendant possessed a firearm in furtherance of the crime, or used or carried the firearm during and in relation to the crime.(99) One of the great advantages of the Guideline's real offense approach--anathema to the defense bar but clearly an advantage in terms of crime control--is that an SOC can be applied whenever the judge is convinced by a preponderance of the reliable evidence that a firearm was involved, regardless of whether the statute was charged and a conviction was obtained. This assures uniform punishment for offenders who engage in similar conduct, without depending on prosecutorial charging and bargaining decisions or the vagaries of proof at trial.

Nor does the new legislation address the use of Section 924(c) as a bargaining chip. Further research may be needed to determine how great a problem this is, and whether the explicit incentives for pleading guilty provided by the Guidelines are inadequate. But by expanding the scope of Section 924(c) and increasing punishments, the Act makes the chip available in a larger number of cases and makes it more valuable, which seems likely to increase its use. Further, while the data showing that the statute is invoked less than half the time does not prove disparate application, it seems unlikely that prosecutors are exercising their discretion in identical ways throughout the country. With firearms in particular, there is danger that racial stereotypes could affect how dangerous criminal gangs or individuals are perceived to be, and how willingly prosecutors decline or drop potentially applicable charges.(100) While Guideline SOCs are not immune from these problems, the added safeguards provided by the probation officer's investigation into the real offense for the presentence report, and the judge's independent determination of the facts, may help ensure similar treatment for offenders who engage in similar conduct.

Finally, the new legislation does not address equity issues that lead prosecutors and judges to avoid firearm enhancements when the total punishment appears too severe in a particular case. By expanding the statute's scope and increasing penalties, the legislation may actually compound this problem. Data presented in Section III.B suggest that equity concerns arise most often in drug trafficking cases when, for example, a less culpable offender at the periphery of a conspiracy is caught in the net of the broad statutory language. While a fair result may be achieved through a prosecutor's decision to decline or dismiss a firearm charge, the expanded statute makes fairness more dependent on prosecutorial discretion and less on strict application of the rule of law.

Fundamentally, the interaction of mandatory minimum statutes and the Sentencing Guidelines complicates the law of sentencing and makes rational calibration of proportionate punishment much more difficult.(101) The prospects seem dim, however, for convincing Congress to repeal any mandatory minimum penalties in the near future,(102) so it will be left to the Commission to try to make the best of a bad situation.

A. Achieving Crime Control AND Sentencing Reform

Given the expanded scope of Section 924(c), the Commission may now want to revisit firearm SOCs in light of the latest research on their operation. As a beginning, ways to minimize discrepancies between the statute and the Guidelines should be explored. For example, differences between the statutory and Guideline definitions of "brandishing" and between the concepts of "possession in furtherance" and "possession" as defined in the drug trafficking Guideline should be eliminated or reduced to avoid confusing and nearly duplicate standards.

Consistent with the Guidelines' overall approach, methods of reducing the influence of prosecutors' discretion to decline or dismiss Section 924(c) charges should also be considered to help avoid the unwarranted disparity that can result. Section II.B above discussed how the Guidelines' current treatment of Section 924(c) charges is in some respects unique. Rather than using a "combined Guideline" approach to integrate the firearm enhancement with the sentence for the underlying crime, Section 924(c) penalties are simply added to the Guideline sentence, regardless of how arbitrarily this affects the weight given to a gun from case to case. This creates "cliffs" and other anomalies in the Guideline's system of proportionate punishment.(103) Treating Section 924(c) counts like any other should be considered.

The most important reason that conviction under Section 924(c) has such a substantial impact on the sentence, however, is that it ordinarily calls for prison terms much longer than the corresponding Guideline SOC. This discrepancy has been made greater by the tiered sanctions for brandishing and discharging now found in the statute which are absent from some of the Guidelines, notably the Guideline for drug trafficking. The Commission should consider increasing the firearm SOCs by adding tiers to all the Guidelines and perhaps raising the offense level increments associated with each tier. It should also consider establishing a minimum offense level--such as level twenty-six, corresponding to a five-year prison term--for any offense in which a gun was possessed. If such a minimum were added to the drug trafficking Guideline, for example, it would ensure that any drug trafficker who possessed a firearm in furtherance of his or her crime would receive at least a five-year Guideline sentence, regardless of the type or amount of drug that was involved.

Since the statute always trumps the Guideline sentence, the only way the Commission can minimize the discrepancy between the prison terms required by the statute and the Guidelines is to make the SOC adjustments more like the statute. One problem with doing this has been noted earlier: the SOCs raise sentences proportionately while the statute adds a fixed number of years. But, more fundamentally, simply increasing the firearm SOCs to the statutory levels is likely to compound one of the problems that causes the enhancements to be circumvented--the resulting sentences would be judged too severe in many cases by judges, defense counsel, and prosecutors. As shown by the data in Section III.B, this problem is especially common in drug trafficking cases, which are already among the most severely punished in the federal system.

Interestingly, it may not be the firearm SOC that is the problem in these cases. One reason the firearm enhancements are avoided in drug cases is that the sentence required for the underlying drug offense, not the firearm increase per se, is considered too severe.(104) Under the Guidelines, which follow the approach of the drug trafficking mandatory minimum penalty statutes, the amount of drugs involved in a trafficking offense is the primary determinant of sentence length. It can set the offense level anywhere from six to thirty-eight, and the imprisonment range anywhere from probation to life in prison. No other factor in the Guidelines has a range of impact like drug quantity.

The weight given to drug quantity under the Guidelines contrasts with the findings of a major survey, recently completed for the Commission, concerning the factors that the public believes should influence sentences.(105) It found that the public views the amount of drugs involved in an offense and the defendant's use of a weapon as about of equal importance. This and other research suggests that drug amount might better count for less, and weapons more, than they do under the current Guidelines.(106) A partial solution to under-utilization of the firearm enhancements might thus lie in reducing the role of drug quantity in trafficking cases while increasing the impact of the firearm adjustments. If implemented carefully, this could target the most dangerous gun-toting offenders for the lengthiest imprisonment.(107)

These and other ideas for Guideline amendment should be considered by the Sentencing Commission as part of a comprehensive evaluation of firearm sentencing. Each proposal for amendment of the Guidelines will need to be carefully evaluated, for one thing we have learned is that changes do not always have their desired effects, and can sometimes have negative, unintended consequences.(108) To reduce violent crime, focusing on guns makes sense. The question is how to do it in a way that also advances our other goals for federal sentencing.

(1.) 18 U.S.C. [sections] 924(c) (1984), as amended by 18 U.S.C. [sections] 924(c) (1986).

(2.) 18 U.S.C. [sections] 924(c) (1986), as amended by 18 U.S.C. [sections] 924(c) (1988).

(3.) For a more complete history of the evolution of 18 U.S.C. [sections] 924(c) up to the 105th Congress, see Kristin Whiting, The Aftermath of Bailey v. United States: Should Possession Replace Carry and Use Under 18 U.S.C. [sections] 924(c)(1)?, 5 J.L. & POL'Y 679, 682-91 (1997).

(4.) 516 U.S. 137 (1995). For a detailed description of the Bailey decision, see discussion infra Part IV.

(5.) Act to Throttle Criminal Use of Guns, Pub. L. No. 105-386, 112 Stat. 3469 (1998) (to be codified in 18 U.S.C. [sections] 924(c)).

(6.) Id.

(7.) P.L. 98-473, Title II, Ch. II, [sections] 211, 98 Stat. 1987.

(8.) Mass. Gen. Laws Ann. Ch. 269, [sections] 10 (1992).

(9.) See James A. Beha, "And Nobody Can Get You Out": The Impact of a Mandatory Prison Sentence for the Illegal Carrying of a Firearm on the Use of Firearms and on the Administration of Criminal Justice in Boston, 57 B.U. L. REV. 289, 314 (1977).

(10.) See Glenn L. Pierce & William J. Bowers, The Bartley-Fox Gun Law's Short-Term Impact on Crime in Boston, 455 ANNALS AM. ACAD. POL. & SOC. SCI. 120 (1981) (suggesting gun law resulted in substantial increase in non-gun armed assaults).

(11.) See Stuart J. Deutsch, Intervention Modeling: Analysis of Changes in Crime Rates, in METHODS IN QUANTITATIVE CRIMINOLOGY (James A. Fox ed. 1981).

(12.) See generally Philip J. Cook, The Technology of Personal Violence, 14 CRIME AND JUSTICE: AN ANNUAL REVIEW OF RESEARCH 1-71 (Michael Tonry ed. 1991).

(13.) See generally Colin Loftin et al., Mandatory Sentencing and Firearms Violence: Evaluating An Alternative to Gun Control, 17 L. & SOC'Y REV. 287-318 (1983) (reporting study of effects of Michigan law in Detroit); Colin Loftin & David McDowall, The Deterrent Effects of the Florida Felony Firearm Law, 75 J. CRIM. L. & CRIMINOLOGY 250 (1984) (discussing preventive effects of felony gun law in Florida).

(14.) See Milton Heumann & Colin Loftin, Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute, 13 L. & SOC'Y REV. 393, 397 (1979) (quoting Wayne County prosecutor's public refusal to plea bargain in cases where Michigan gun law applied).

(15.) See generally David McDowall et al., A Comparative Study of the Preventive Effects of Mandatory Sentencing Laws for Gun Crimes, 83 J. CRIM. L. & CRIMINOLOGY 378 (1992).

(16.) See, e.g., GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA (1991) (detailing cross-sectional analysis of 170 cities); Lee R. McPheters et al., Economic Response to a Crime Deterrence Program: Mandatory Sentencing for Robbery With a Firearm, 22 ECON. INQUIRY 550 (1984) (finding reductions in gun robberies, which could be due to unusually high rates of crime in period immediately preceding enactment of the law).

(17.) See generally Thomas B. Marvel & Carlisle E. Moody, The Impact of Enhanced Prison Terms for Felonies Committed With Guns, 33 CRIMINOLOGY 247 (1995).

(18.) Id. at 269-70.

(19.) Id. at 268 tbl.7.

(20.) Id. at 272 tbl.11.

(21.) 18 U.S.C. [sections] 3553(a)(2) lists "the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" as the first factor to be considered in imposing a sentence. The Sentencing Commission is directed to establish policies and practices that assure the meeting of this purpose, as well as others. See 28 U.S.C. [sections] 991(b)(1)(A) (1994).

(22.) See Milton Heumann et al., Federal Firearms Policy and Mandatory Sentencing, 73 J. CRIM. L. & CRIMINOLOGY 1004, 1052, 1060 (1982) (noting that expected benefits did not result from Michigan gun law, and reporting that serious unexpected consequences including selective administration of gun law sentencing increments occurred instead).

(23.) Id. at 1060.

(24.) P.L. 98-473, Title II, Ch. II, [sections] 211,98 Stat. 1987 codified as 28 U.S.C. [sections] 991(b)(1)(A).

(25.) 28 U.S.C. [sections] 991(b)(1)(B).

(26.) 28 U.S.C. [sections] 991(b)(1)(C).

(27.) 18 U.S.C. [sections] 3553(b). For a general introduction to the Sentencing Reform Act and the sentencing Guidelines, see William W. Wilkins, Jr. et al., The Sentencing Reform Act of 1984: A Bold Approach to the Unwarranted Sentencing Disparity Problem, 2 CRIM. L. FORUM 355 (1991).

(28.) See U.S. SENTENCING COMMISSION, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS 36 (1987). The Commission undertook a multivariate statistical analysis of a sample of 10,000 cases sentenced in 1985. The presence of a weapon was found to be one of many factors correlated with increased sentences in the pre-Guidelines era, with the amount of increase varying by the type of crime. In drug cases, involvement of a weapon increased sentences, on average, by about one-third. In burglaries its effect was somewhat less, while in rapes, robberies, and thefts, it was somewhat more. Perhaps because there were too few cases for reliable estimates, the analysis did not identify differences in the degree of increase associated with how the weapon was used, e.g., brandished, discharged, or merely possessed. Additional increases were found, however, when a victim was injured.

(29.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 1A (1998) (stating three objectives of Congress to be honesty in sentencing, reasonable uniformity in sentencing, and proportionality in sentencing).

(30.) See id. at [sections] 5A.

(31.) See id. at [sections] 1B1.1, commentary 1(d) (defining "dangerous weapon," "firearm," "brandished," and "otherwise used").

(32.) See id. at [subsections] 2A2.2, 2A2.3, 2B2.1.2B2.3, 2B3.1, 2B3.2, 2B5.1, 2D1.1, 2D1.11, 2E2.1, 2F1.1, and 2L1.1 (revealing divergence in offense level increases among Guidelines associated with different types of weapon use). Several reasons explain the variety of approaches found in the Guidelines. In some cases, the amount of increase deemed appropriate depended on the base offense level associated with the Guideline and on the presence of other SOCs. In other cases, the Commission incorporated verbatim language from statutory directives.

(33.) See, e.g., id. at [sections] 2B2.1 (establishing two-level increase if dangerous weapon, including firearm, was possessed for burglary of residence); id. at [sections] 2D1.1 (establishing two-level increase if dangerous weapon, including firearm, was possessed for drug trafficking).

(34.) See id. at [sections] 2B3.1(b)(2).

(35.) See id. at [sections] 2D1.1(b)(1).

(36.) See REPORT OF THE FIREARM POLICY TEAM, app. B (Feb. 7, 1999) available at <http://www.ussc.gov>. The effect of an SOC depends on what an offender's Guideline range would be without it. To determine how much SOCs typically add to sentences, we examined the actual offense levels and criminal history categories of offenders who received them, using the Commission's FY1997 Monitoring Database for all violent and drag trafficking Guidelines that contain firearm SOCs. The position of offenders' sentences within their Guideline ranges were determined. For offenders who received an upward or downward departure, we placed them at the top or bottom of their range, respectively. We then placed them at the same position within the Guideline range they would be without the firearm SOC. The difference in months of imprisonment between the two points was calculated and averaged across all offenders. Just as the final sentences of some defendants who receive statutory enhancements will be affected by a departure, some defendants receiving SOCs will receive a departure. There is no way to know whether the departure was from the firearm enhancement or from some other component of the final sentence. The calculation method we used compares the effects of the firearm enhancements per se.

(37.) See id.

(38.) See id.

(39.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 1B1.3 (1998-1999). For fuller discussion of the purposes of the relevant conduct rule, see William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. REV. 495 (1990).

(40.) See United States v. Watts, 519 U.S. 148 (1997) (finding that double jeopardy is not implicated when court considers conduct of which defendant has been acquitted). For criticism of the Guidelines' real-offense approach, see Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 STAN. L. REV. 523, 565 (1993) (recommending separation of conviction facts and sentencing facts); Elizabeth T. Lear, Is Conviction Irrelevant?, 40 UCLA L. REV. 1179, 1218 (1993) (challenging "constitutionality of treating unconvicted criminal conduct as an aggravating factor at sentencing"); David Yellen, Illusion, Illogic, and Injustice: Real-Offense Sentencing and the Federal Sentencing Guidelines, 78 MINN. L. Rev. 403, 435 (1993) (arguing that use of related offense sentencing has created unjust system). For a defense of the approach, see Julie R. O'Sullivan, In Defense of the U.S. Sentencing Guidelines' Modified Real-Offer, se System, 91 NW. U. L. REV. 1342, 1363 (1997) (defending Commissions' adoption of real-offense base).

(41.) U. S. SENTENCING GUIDELINES MANUAL [sections] 2D1.1, Application Note 3.

(42.) See, e.g., United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995) (affirming increase in offense level on drug charge due to gun possession); United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992) (finding possession of handgun reason to raise drug offense by two levels). For a complete summary, see JEFRI WOOD, FED. JUD. CENTER, GUIDELINE SENTENCING: AN OUTLINE OF APPELLATE CASE LAW ON SELECTED ISSUES 55, II.C.1 (Sept. 1998).

(43.) For a general discussion of problems create d by the interaction of the mandatory minimum penalty statutes and the Guidelines, see UNITED STATES SENTENCING COMMISSION, SPECIAL REPORT TO CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (Aug. 1991) [hereinafter SPECIAL REPORT]. See also William W. Wilkins, Jr. et al., Competing Sentencing Policies in a "War on Drugs" Era, 28 WAKE FOREST L. REV. 305, 319-24 (1993) (questioning whether mandatory minimums are necessary under current Guidelines system).

(44.) Several circuits have held, however, that a defendant who is convicted under Section 924(c) may also receive the firearm SOC if a different weapon was possessed by a codefendant within the scope of the defendant's accountability under the relevant conduct rule. An SOC adjustment for possession of a knife has also been held proper even when a defendant has been convicted under Section 924(c) for a gun. See United States v. Rodriguez, 65 F.3d 932, 933 (11th Cir. 1995) (affirming sentence imposed for separate weapons possession for co-conspirator during commission of conspiracy); United States v. Washington, 44 F.3d 1271, 1280-81 (5th Cir. 1995) (upholding sentence enhancement for defendant supplying co-defendant with pistol and as organizer of criminal activity). See generally WOOD, supra note 42 at 57, II.C.2 (discussing circuit courts' application of Section 2D1.1 (b)(1) in context of [sections] 924(c) conviction). Commission data indicate that it is quite rare for offenders to receive both enhancements, except in cases of robbery,

(45.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 1A4(e) (1998-1999); Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L, REV. 1, 25 (1988) (discussing rationale underlying grouping rules).

(46.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 3D1.2(b) (requiring grouping of counts involving common criminal objective). This approach was mandated by the SRA, 28 U.S.C. [sections] 994(1)(2).

(47.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 5G1.2 (1998-1999).

(48.) See id. at [sections] 3D1.1 (b).

(49.) See id. at [sections] 5G1.2. See also id. at [sections] 5G1.2 commentary at para. 4.

(50.) See SPECIAL REPORT, supra note 43, at 56-58.

(51.) See Patrick Langan, Federal Prosecutor Application of Mandatory Sentencing Laws: Racially Discriminatory? Widely Evaded? (Dec. 1992) (unpublished analysis on file at U.S. Sentencing Commission). Langan found that proof and evidence problems explained at least twelve percentage points of the 40% of offenders who appeared to qualify for a sentence increase under a firearm or drug mandatory minimum but did not receive it. Evidence problems were particularly likely in firearm cases in which the defendant him or herself did not use or carry the gun.

(52.) See Stephen J. Schulhofer & Ilene H. Nagel, Negotiated Pleas Under the Federal Sentencing Guidelines: The First Fifteen Months, 27 AM. CRIM. L. REV. 232, 272-78 (1989) (describing fact-bargaining over gun possession).

(53.) See Special Issue-Assessing the Probation Officers' Survey: Does Fact Bargaining Undermine the Sentencing Guidelines?, 8 FED. SENT. REP. 6 (May/June 1996) (reporting survey results that plea agreements often do not contain full offense conduct).

(54.) Note that the analysis in Figure 2 is based on whether the defendant was legally accountable for the firearm, not whether he or she personally used a gun. The legal principle of conspiratorial liability is clear that a defendant is accountable for an accomplice's foreseeable use or possession of a firearm during any jointly undertaken criminal activity. But because prior research has shown that evidence and equity concerns are especially likely when a defendant did not personally use the gun, we also performed our analysis excluding these defendants. The general finding of under-utilization still holds. Among defendants who personally used a firearm, 37% received a Section 924(c) increase and 27% received an SOC. Among defendants who carried a firearm, 31% received a Section 924(c) or an SOC. Among those in the possessed/facilitated category, 23% received a Section 924(c) increase and 38% received an SOC. And among those who simply possessed a firearm, none received a Section 924(c) and 21% received an SOC. Even given the margin of error, this supports the general finding that the majority of defendants, even among those who personally use or carry a firearm, do not receive a Section 924(c) increase.

(55.) Reasonable persons may disagree over questions such as whether the possession of a gun facilitated the offense in a particular case and therefore analysts who examined these cases for our study agreed just 75% of the time. Given the ambiguity in the applicable law, it is likely that courts were inconsistent and we believe our general conclusions remain valid despite some disagreement over particular cases.

(56.) For a compendium and review of Department of Justice policies, see Special Issue, Justice Department Guidance for Prosecutors: Fifteen Years of Charging & Plea Policy, 6 FED. SENT. REP. 6 (June 1994).

(57.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 3E1.1.

(58.) See id. at [sections] 5K1.1.

(59.) See Stephen J. Schulhofer & Ilene H. Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Era, 91 NW. U. L. REV. 1284, 1309-11 (1997) (summarizing effects of severity levels on use of under-charging and plea bargaining to circumvent mandatory minimum statutes and Guidelines).

(60.) See Paul Silvio Berra, Co-Conspirator Liability Under 18 U.S.C. [sections] 924(c): Is It Possible to Escape Punishment?, 1996 WISC. L. REV. 603, 626-32 (arguing that scope of co-conspirator liability for firearms has been extended too far); Tyler B. Robinson, A Question of Intent: Aiding and Abetting Law and the Rule of Accomplice Liability Under [sections] 924(c), 96 MICH. L. REV. 783, 839 & n.97 (1997) (criticizing rigidity of co-conspirator liability).

(61.) We compared the rate of SOC application in cases falling above the five-year mandatory minimum quantity thresholds (e.g., five grams of crack cocaine, 500 grams of powder cocaine, 100 grams of heroin, etc.) with those falling below it, and found higher rates of SOC application in the lower ranges of drug quantity. It seems unlikely that offenders trafficking in larger quantities of drugs would be less likely to be involved with firearms than those trafficking in smaller amounts, suggesting that circumvention may be more common when sentences are already severe based on drug quantity.

(62.) See infra notes 106-108 and accompanying text.

(63.) 18 U.S.C. [sections] 924(c) (1986).

(64.) See, e.g., United States v. Bailey, 995 F.2d 1113, 1117 (D.C. Cir. 1993) (holding that gun located in trunk of car was "used" during drug operations).

(65.) See United States v. Torres-Rodriguez, 930 F.2d 1375, 1385 (9th Cir. 1991) (holding mere possession sufficient to satisfy Section 924(c)).

(66.) See United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir. 1988) (holding that "use" requires "some relation and connection between the gun and the underlying crime").

(67.) For more detailed discussion of the background to the Supreme Court decision, see generally Tiffany Gulley Becker, The "Active Employment" Standard: Much-Needed Clarification for Determining Liability for "Use" of a Weapon During the Commission of a Drug-Related Crime, 61 MO. L. REV. 1065 (1996).

(68.) 516 U.S. 137 (1995).

(69.) See id. at 145.

(70.) See id. at 150.

(71.) See id. at 143.

(72.) See id. at 148-49.

(73.) See id. at 149.

(74.) This range represents the 95% confidence interval for the estimate. In other words, given a sample of this size, the true number of cases in the full 1995 population that fell into this category would be within this range 95% of the time. The confidence interval estimates only the amount of fluctuation expected due to sampling; it does not estimate year-to-year changes in the total size of the caseload, case characteristics, prosecutor priorities, or other sources of error.

(75.) The monitoring dataset is described in greater detail in U.S. SENTENCING COMMISSION, A GUIDE TO PUBLICATIONS AND RESOURCES, published periodically and available from the U.S. Sentencing Commission, One Columbus Circle NE, Suite 2-500, Washington, D.C. 20002 (202-502-4500). The Guide is also available on the Commission's website at <http://www.ussc.gov>. The dataset is distributed by the Inter-University Consortium for Political and Social Research at the University of Michigan (1-800-999-0960).

(76.) The monitoring datafile does not distinguish among different types of weapons, so a small number of the SOC increases shown may be from cases involving knives or other weapons. Data from the ISS indicate that only a small portion of weapons are not guns. Crimes of violence were defined with reference to the most serious statute of conviction. Included were convictions for murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

(77.) Some commentators suggested that coup, might expand the definition of "uses" or "carries" to partially compensate for the constriction resulting from the court's decision. See Whiting, supra note 3 at 682-91 (arguing that some courts have expanded definition of "use" and "carry" following Bailey decision, creating danger of inconsistent application). However, these data suggest that the decision has had a definite effect on the scope of the statute.

(78.) See Bailey, 516 U.S. at 150.

(79.) 524 U.S. 125 (1998).

(80.) H.R. REP. No. 344, pt.1, at 12 (1997).

(81.) See Act to Throttle Criminal Use of Guns, Pub. L. No. 105-386, 112 Stat. 3469 (1998) (to be codified in 18 U.S.C. [sections] 924(c) which provides that:
 (a) IN GENERAL--Section 924(C) of title 18, United States Code, is
 amended--(1) by striking `(c)' and all that follows through the end of
 paragraph (1) and inserting the following:

 (c)(1)(A) Except to the extent that a greater minimum sentence is otherwise
 provided by this subsection or by any other provision of law, any person
 who, during and in relation to any crime of violence or drug trafficking
 crime (including a crime of violence or drug trafficking crime that
 provides for an enhanced punishment if committed by the use of a deadly or
 dangerous weapon or device) for which the person may be prosecute, d in a
 court of the United States, uses or carries a firearm, or who, in
 furtherance of any such crime, possesses a firearm, shall, in addition to
 the punishment provided for such crime of violence or drug trafficking
 crime--

 (i) be sentenced to a term of imprisonment of not less than 5 years;

 (ii) if the firearm is brandished, be sentenced to a term of imprisonment
 of not less than 7 years; and

 (iii) the firearm is discharged, be sentenced to a term of imprisonment of
 not less than 10 years if.

 (B) If the firearm possessed by a person convicted of a violation of this
 subsection--

 (i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic
 assault weapon, the person shall be sentenced to a term of imprisonment of
 not less than 10 years; or

 (ii) is a machine gun or a destructive device, or is equipped with a
 firearm silencer or firearm muffler, the person shall be sentenced to a
 term of imprisonment of not less than 30 years.

 (C) In the case of a second or subsequent conviction under this subsection,
 the person shall--

 (i) be sentenced to a term of imprisonment of not less than 25 years; and

 (ii) if the firearm involved is a machine gun or a destructive device, or
 is equipped with a firearm silencer or firearm muffler, be sentenced to
 imprisonment for life.

 (D) Notwithstanding any other provision of law--

 (i) a court shall not place on probation any person convicted of a
 violation of this subsection; and

 (ii) no term of imprisonment imposed on a person under this subsection
 shall run concurrently with any other term of imprisonment imposed on the
 person, including any term of imprisonment imposed for the crime of
 violence or drug trafficking crime during which the firearm was used,
 carried, or possessed; and

 (2) by adding at the end the following:

 (4) For purposes of this subsection, the term `brandish' means, with
 respect to a firearm, to display all or part of the firearm, or otherwise
 make the presence of the firearm known to another person, in order to
 intimidate that person, regardless of whether the firearm is directly
 visible to that person.

 (b) CONFORMING AMENDMENT--Section 3559(c)(2)(F)(i) of title 18, United
 States Code, is amended by inserting `firearms possession (as described in
 section 924(c))'; `after firearms use.'


(82.) But cf. S. 362, 105th Cong. (1997) (bill introduced by Senators Leahy and Biden that would have substituted "in close proximity to" crime of violence or drug trafficking in lieu of "in relation to" formulation).

(83.) 18 U.S.C. [sections] 924(c)(4) (Supp. 1998).

(84.) See U. S. SENTENCING GUIDELINES MANUAL [sections] 1B1.1 (1999). Application Note 1 (c) states: "`Brandished' with reference to a dangerous weapon (including a firearm) means that the weapon was pointed or waved about, or displayed in a threatening manner." This form of brandishing was found in 9% of our ISS sample, translating to about 1380 cases per year. Discharge of a weapon by either a defendant or one of his or her accomplices is relatively uncommon. It was found in only 3% of our sample, or about 520 cases per year.

(85.) U. S. SENTENCING GUIDELINES MANUAL [sections] 2D1.1, Application Note 3.

(86.) See COURTNEY SEMISCH, U.S.S.C., 1 MULTIPLE COUNTS 2 (1998). Based on the ISS sample, hand guns are by far the most common type of weapon.

(87.) See 18 U.S.C. [sections] 924(c)(1)(c)(ii) (Supp. 1998).

(88.) Criminal Use of Guns: Hearings on S. 191 Before the Committee on the Judiciary, 105th Cong. 4 (1997) (Statement of Senator Jesse Helms).

(89.) There was some discussion at the Senate hearing of circumvention of Section 924(c) through plea agreements. Senator Thurmond asked Walter C. Holton, U. S. Attorney for the Middle District of North Carolina, whether it was unusual for prosecutors to dismiss Section 924(c) charges as part of a plea agreement. He was told that, at least in that one district, there was a longstanding policy not to plea bargain with Section 924(c) counts. See id. at 20. Senator Sessions asked Mr. Holton whether a change in the Department of Justice's policies regarding plea agreements known as the 1993 "Reno Bluesheet" had affected plea bargain practice. He was told it had not. For a different view, see generally Olivia Karlin & Carlton Gunn, Response to the Reno Bluesheet: Prosecutors Should Bargain About Guideline Factors and Use Binding Pleas, 6 FED. SENT. REP. 315 (1994) (reporting that Reno policy had not significantly increased availability of charge or fact bargains in Central District of California, except for dismissal of Section 924(c) counts).

(90.) This was not entirely Congress's fault; the Sentencing Commission did not provide such information on its own initiative. The Commission has an ongoing mandate to "make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane, and rational sentencing policy." 28 U.S.C. [sections] 995(20). Regarding the Commission's recent low profile in debates over mandatory minimum legislation, see Julie Stewart, Families Against Mandatory Minimums, Testimony Before the United States Sentencing Commission, Mar. 18, 1997, reprinted in 9 FED. SENT. REP. 317 (1997).

(91.) See Hearings on S. 191, supra note 88, at 30 (statement of Professor David Zlotnick).

(92.) Id. at 30 (statement of Thomas G. Hungar). In his prepared statement, Hungar described how the offense level for a first-time offender convicted of possessing 200 grams of marijuana would be increased only from level six to level eight, resulting in an imprisonment range in both cases of zero-six months, which would permit the judge to impose probation. This results from the way the drug trafficking Guideline increases sentences proportionately, based on the seriousness of the underlying crime. As described in a previous section, for more serious drug offenses, the imprisonment required by the Guidelines would be longer and in some cases exceeds the 60 months mandated by the statute. In addition, some Guidelines adopt a minimum offense level in cases involving firearms, thus ensuring imprisonment for offenders who use guns. See, e.g., U.S. SENTENCING GUIDELINES MANUAL [sections] 2B5.1 (mandating offense level of at least thirteen for all offenses involving counterfeiting in which firearm is used). For empirical calculations of how much the SOCs actually add to sentences on average, see supra note 36 and accompanying text.

(93.) 144 CONG. REC. H532 (daily ed. Feb. 24, 1998).

(94.) Because most cases that include a conviction under Section 924(c) have Guideline ranges far above the five-year level, based on the seriousness of the underlying offense, there is plenty of room for departure. Of course, the statutory enhancement, like all mandatory minimum penalties, sets a floor below which the judge may not depart (unless the prosecution moves for a departure based on the defendant's substantial assistance in the prosecution of another person). This inability to depart below the statutory minimum is viewed as a plus by persons who distrust judicial discretion, and as a negative by those who believe some cases present unusual circumstances that justify a sentence below even the statutory level.

(95.) All figures are based on the Commission's FY 1998 Monitoring Dataset. The actual sentences of cases sentenced within the Guidelines are used. For cases receiving a departure, the minimum or maximum of the Guideline range is used, depending on type of departure.

(96.) See generally FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM; LETHAL VIOLENCE IN AMERICA (1997). Using cross-national comparisons, the authors show that rates of property and violent crime in America, though generally as high as in comparable countries, are not of an entirely different magnitude. However, the rates of homicide and death resulting from crimes such as robbery and aggravated assault are three to ten times higher in the United States than in other members of the Group of Seven (G7) industrialized nations. The role of firearms, particularly handguns, is identified as a priority concern if America is to deal with this most pressing crime problem. For more information, see, in particular, the Zimring and Hawkins chapter on "Firearms and Lethal Violence." See id. at 106.

(97.) For a description of an experiment in one city to advertise the severe federal penalties to deter gun use, see Gary Fields, City Makes Federal Cases of Gun Crimes, USA TODAY, Feb. 2, 1999 at 4A (describing Richmond, Virginia's prosecution policies and billboard campaign).

(98.) See SPECIAL REPORT, supra note 43 at 119; see generally Orrin G. Hatch, The Role of Congress Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 WAKE FOREST L. REV. 185 (1993) (reviewing creation of U.S. Sentencing Commission by Congress and discussing effectiveness of Commission's Guidelines in achieving Congress's sentencing goals).

(99.) The author has heard anecdotal reports that some prosecutors are charging "uses" or "carries" whenever possible to avoid the further requirement of proving "in furtherance of the crime" when only possession is alleged.

(100.) Comparison of the racial composition of federal offenders who qualify for, versus receive, statutory firearm enhancements reveals a disturbing pattern. The Commission first reported in 1991 that Blacks and Hispanics were disproportionately represented among offenders who receive mandatory penalties. See SPECIAL REPORT, supra note 43, at 76. More recent analysis using the 1995 ISS data found similar disproportionalities in firearm cases. See Paul J. Hofer & Kevin R. Blackwell, Identifying Sources of Unfairness in Federal Sentencing (Nov. 1997) (unpublished paper presented at the annual meeting of the American Society of Criminology; on file with authors). For example, while Blacks accounted for 48% of offenders who qualified for a Section 924(c), they represented 56% of those who were charged under the statute and 64% of those convicted under it. While all legitimate reasons for the growing disproportionality cannot be ruled out with current data, the adverse impact of Section 924(c) on minorities is a reason to move cautiously.

(101.) For further discussion of problems created by mandatory minimums in the Guidelines era, see generally BARBARA S. VINCENT & PAUL J. HOFER, FED. JUD. CENTER, THE CONSEQUENCES OF MANDATORY MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS (1994); Gary T Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CAL. L. REV. 61 (1993).

(102.) As this paper is going to press, Congress is again considering amending Section 924(c) to increase penalties, less than a year after the legislation discussed here. See S. 254, 106th Cong. 903 (1999). If enacted, such amendment would increase the penalty for discharge of a firearm to twelve years and add a fifteen-year minimum penalty when a firearm is used to injure a person. This legislation is currently in conference with House Juvenile Justice legislation. See H.R. 1501, 106th Cong. (1999).

(103.) Prosecutors could do their part for proportionate punishment if they evaluated the effect of a Section 924(c) count in light of the Guidelines when deciding whether to charge or dismiss it. The Reno Bluesheet on charging and plea decisions, promulgated October 12, 1993, directs prosecutors to make an "individualized assessment" of each case and consider such factors as, "the Sentencing Guideline range yielded by the charge," and "whether the penalty yielded by such a sentencing range (or potential mandatory minimum charge, if applicable) is proportional to the seriousness of the defendant's conduct." (emphasis added). Rather than inviting ad hoc decisions by prosecutors about what sentence is appropriate, a sensible interpretation of this policy is that charges need not be pressed if they would trump the Guideline range and increase the sentence above the level the Guidelines deem proportionate for a case involving a firearm.

(104.) See Stephen J. Schulhofer & Ilene Nagel, supra note 52; Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity, 29 AM. CRIM. L. REV. 833, 870-72 (1992).

(105.) See Peter H. Rossi & Richard A. Berk, Public Opinion on Sentencing Federal Crimes, 73, 82-86 (Oct. 1995) (report submitted to the United States Sentencing Commission), later published as PETER H. Rossi & RICHARD A. BERK, JUST PUNISHMENTS: FEDERAL GUIDELINES AND PUBLIC VIEWS COMPARED (1997).

(106.) See MOLLY TREADWAY JOHNSON & SCOTT GILBERT, FED. JUD. CENTER, THE U.S. SENTENCING GUIDELINES: RESULTS OF THE FEDERAL JUDICIAL CENTER'S 1996 SURVEY (1997) (reporting survey of federal judges finding that emphasis given to drug quantity by mandatory minimum statutes and Guidelines is considered one of areas most in need of substantive change); see also GENERAL ACCOUNTING OFFICE, SENTENCING GUIDELINES: CENTRAL QUESTIONS REMAIN UNANSWERED (Aug. 1992) (reporting harshness and inflexibility of drug Guideline most frequent problem cited by interviewees); Peter Reuter & Jonathan P. Caulkins, Redefining the Goals of National Drug Policy: Recommendations from a Working Group, 85 AM. J. PUB. HEALTH 1059, 1062 (1995) (reporting recommendations of RAND Corporation working group which concluded that "Federal sentences for drug offenders are often too severe: they offend justice, serve poorly as drug control measures, and are very expensive to carry out.... The U.S. Sentencing Commission should review its Guidelines to allow more attention to the gravity of the offense and not simply to the quantity of the drug.").

(107.) In past years, the Commission has considered numerous proposals for reducing the impact of drug quantity. See Sentencing Guidelines for United States Courts, 60 Fed. Reg. 5,2430, 5,2450-2451, 5,2459-2463 (proposed Jan. 9, 1995). The impact of quantity could be reduced by "capping" or "compressing" the Drug Quantity Table so that drug type and amount alone would raise sentences to no more than level 32, corresponding to 121-151 months (the ten-year term required by statute). Other proposals have included: 1) replacing quantity altogether with an assessment of each offender's role and culpability; 2) limiting the period of time during which drug amounts are aggregated, so that offenders who are subject to ongoing investigations do not receive arbitrarily longer sentences than those arrested on first encounter with police; and 3) basing sentences on the pure quantity of drug rather than the entire mixture or substance containing any trace of a drug, which is now used under the statutes and the Guidelines (except for pure methamphetamine, PCP, and LSD, where the weight of the carrier medium can be hundreds of times the weight of the drug itself). This would reduce arbitrary differences among offenders caused by treating inert filler substances the same as actual drugs.

(108.) Increasing the role of firearms in drug trafficking offenses was part of the approach proposed by the Sentencing Commission in its 1995 amendments concerning crack and powder cocaine. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 90,25074, 90,25076 (1995). These amendments were disapproved by Congress, Pub. L. No. 104-38, 109 Stat, 334 (1995), although the disapproval was based on the particular quantity thresholds established for crack cocaine rather than on the increases in the firearm SOCs, which would have been applicable to all drug trafficking cases. It should be noted that one of the arguments in favor of severe sentences for defendants who traffick in relatively small quantities of crack cocaine has been the increased violence associated with the crack trade. To the extent that penalties for crack already reflect the increased presence and use of firearms, additional increases for firearms would be redundant and would compound the already severe disproportionate impact of these penalties on black offenders.

Paul J. Hofer, Senior Research Associate, United States Sentencing Commission; Adjunct Assistant Professor of Psychology, Johns Hopkins University; Ph.D., Johns Hopkins University, 1987; J.D., University of Maryland, 1986. The views expressed are those of the author, and do not necessarily reflect a position of the U.S. Sentencing Commission. The author wishes to acknowledge the assistance of the staff of the Commission, especially Will Martin and Keri Burchfield who conducted all of the statistical analyses, Jonathan Ladle who helped with the literature review, and Pat Valentino and Jonathan Cohen who did copy editing. John Steer, Linda Maxfield, Tim McGrath, and Lou Reedt provided detailed comments on previous drafts, which led to numerous improvements. Responsibility for any remaining errors rests with the author.
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