In his testimony before the Senate Judiciary Committee on Jan. 30, National Rifle Association executive vice president Wayne LaPierre trotted out a hoary chestnut of NRA mythology: Prosecutors don’t go after gun criminals.
“That means violent felons, gang members and the mentally ill who possess firearms are not being prosecuted. And that’s unacceptable,” LaPierre said.
It’s also untrue.
LaPierre offered no statistics to back up his oft-repeated charge, save for a mention of federal gun crime prosecutions falling by 35 percent in 2011 compared to 2010 — a claim discredited by the fact that violent crimes decreased nationwide during that span. LaPierre left unsaid that about 75 percent of federal gun crimes are originated by the Bureau of Alcohol, Tobacco, Firearms and Explosives, an agency the NRA has gone to extraordinary lengths to weaken.
LaPierre also didn’t mention that the vast majority of gun crimes in America are handled by state, not federal, prosecutors. Gun murders, gang shootings, firearm assaults and armed robberies are rarely pulled up to federal court, for the simple reason that these crimes violate existing state laws and state prosecutors possess the investigative resources to pursue the cases. This is where the NRA’s statistical claims become even more assailable.
Typically in a criminal case involving a firearm the most serious charge is the offense committed with the gun, not the possession of the gun itself. For instance, a gun murder case will typically consist of a first- or second-degree murder charge, and a separate illegal possession of a firearm charge, assuming the gun wasn’t properly licensed to the individual charged. If the defendant is convicted, the judge typically sentences on the lead charge — murder — and might order the sentence on the gun charge to be served concurrently with the murder charge. The criminal has been convicted and is serving time, but because the gun conviction is not being served as a consecutive, or add-on, sentence, the NRA counts it as an unenforced — which is voiced in the organization’s parlance as an un-prosecuted — offense.
Another example might include a serious offense involving a gun for which the defendant is convicted, but the gun charge is “filed,” which is a somewhat vague judicial exercise resulting in the sentence being imposed on the case’s most serious charge, be it intent to murder, armed robbery, rape. Again, the criminal is convicted and imprisoned, but the NRA isolates the filed gun charge for inclusion in its unenforced column.
With a reckless mix of umbrage and rhetorical license, NRA spokesmen take cases like these and declare that new laws aren’t necessary — all prosecutors need do is enforce laws already on the books. This argument rarely gets challenged. Indeed, LaPierre didn’t face a single question during the Jan. 30 Senate hearing specific to his statement alleging a general lack of enforcement.
Lawmakers don’t have to dig too deep to find cold water for the NRA’s hot allegations. For instance, according to the Suffolk County District Attorney’s office, in Boston there were 366 criminal cases involving guns in 2011, with 168 of them serious enough to be indicted to superior court. The remaining 198 cases were handled in a special gun session attached to Boston Municipal Court. It defies logic that prosecutors in other cities wouldn’t be as serious about pursuing gun cases. That’s like saying fish aren’t serious about swimming. It’s what they do.
It’s somewhat artful that the NRA consistently talks about lack of prosecution, not lack of arrests. This might be attributable to the organization equating prosecutors, more than police, with government overreach, a great source of NRA paranoia (it’s interesting how the NRA’s strong-government phobia co-exists with its howls for expanded prosecutions). Or perhaps they wish not to offend their own board members, many of whom are current or former law enforcement officers (none are prosecutors).
Either way, their argument that gun cases aren’t prosecuted is a dud.
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Editor’s note: Jim Borghesani was director of communications at the Suffolk DA’s office from 1995 to 2001.