Whatever the wisdom or folly of the belief, Americans who live in violence-affected neighborhoods often believe they need a gun for self-defense. Yet many are, due to age or criminal record, unable to legally possess a firearm. The result is a Catch-22 they describe as either being “caught with a gun . . . [or] dead without one.” Indeed, Chicago, Philadelphia, and other cities imprison thousands of mostly young, Black men each year for non-violent gun offenses. These offenses do not involve firing or wielding a gun, but simply being found in possession of one—commonly, during a routine traffic stop where police discover a firearm under the seat of the car. Research indicates that mandating prison sentences for gun possession is not an effective tool for reducing gun violence. Yet, as this Comment describes, the painful status quo has proven difficult to change, even for “progressive prosecutors” elected to reform criminal justice. This Comment draws on first-hand interviews to detail how progressive prosecutors handle gun possession cases in practice. While these prosecutors advance some important changes, reforms remain limited by practical and political realities. To aid in breaking through these barriers, this Comment proposes a new cost-benefit framework called “Burden-Adjusted Violence Averted” (BAVA). BAVA yields the simple insight that we should invest in policies that do the most to reduce gun violence with the least pain and inequity. Imprisoning people for simple gun possession is deeply burdensome. And, in comparison to community-based anti-violence interventions, it is less likely to make our cities safe.
Cite as: Robert Weiss, Rethinking Prison for Non-Violent Gun Possession, 112 J. Crim. L. & Criminology 665 (2022).