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Gun Regulations and Limits of the Law

The push in Congress and in many states for new gun laws will be captured by many political myths. Debates will falsely declare that the mentally ill are the cause of gun violence; much in the same way the welfare queen was once for blamed for exploding government spending. Others will insist we simply need to enforce current laws on the books. However, beyond these assertions, there will also be demands to increase the penalties for gun crimes, including creation of mandatory minimum or repeat offender laws. Neither of these approaches will be successful.

In my recently published American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Evidence, I document the evidence that challenges both the idea that most violent behavior is calculative, and therefore preventable by enhanced penalties, and that trendy ideas such as mandatory minimum or repeat offender statutes have been successful deterrents to crime or effective social policy.

Mandatory minimum penalties are a popular proposal for getting tough on crime. The idea behind them is simple and it is rooted in deterrence theory: Simply increase the sentence for committing a crime and the idea is that the average calculating [would-be] criminal will do the math and decide not to break the law. However, while mandatory minimums have been around for awhile and in part are at the core of determinate sentencing philosophy since the 1980s, the 1990s saw the birth of “three strikes and you’re out” laws. These laws were aimed at repeat offenders, creating significantly longer sentences for second offenses and perhaps life for a third.

Tougher mandatory minimums and three strikes were depicted as ways to deter criminals, yet there was little evidence that such laws had much impact. For example, Zimring and Hawkins in Incapacitation: Penal Confinement and the Restraint of Crime, found little impact that mandatory minimums deterred crime. Studies in Massachusetts, Michigan, Florida, New York, and elsewhere reached similar conclusions. Did the three strikes law decrease crime?

Overwhelmingly studies demonstrate that the three strike laws have little deterrent effect, and instead produced several unwanted externalities. Zimring, Hawkins, and Kamin in Punishment and Democracy found little evidence of deterrence. For example, there was no evidence that those facing the three strikes laws were less deterred or committed less crimes than those not facing the law. Moreover, often plea bargains are struck to avoid these minimums.

Similarly, this study and Schultz in “No Joy in Mudville Tonight: Impact of Three Strike Laws on State and Federal Corrections Policy, Resources, and Crime Control” noted that crime rates were already going down before the three strikes laws went into effect. The spotty use of three strikes in most states questions how much of an impact the laws had on crime rates. Further, comparing three strikes to non three strikes states found no evidence that the former had crime rate decreases greater than the latter. By all statistical measures, three strike laws did not seem to have much impact on crime rates. Instead, natural downturns in crime as they recessed towards their historical norms, the improvement of the economy, the 100,000 Clinton cops local governments hired with federal money, and perhaps other factors such as decreases in alcohol consumption or childhood exposure to lead paint could account for the decreases in crime.

Three strike laws not only had no measurable impact on crime rates, but they produced several adverse impacts. To pay for the three strikes laws, states had to significantly increase their corrections budgets, often at the expense of education. This was the case in California where the choice of teaching kids how to read or prisoners how to make license plates led to the latter being better funded. Specifically, projections were that by 2012-13 California will spend $15.4 billion on corrections compared to $15.3 on higher education, the former budget growing an annual average of 9%, higher education only 5%. Per capita, the state spends $8,667 per college student, per year compared to roughly $50,000 per inmate annually according to CNN’s Fareed Zakaria.

But finally, there is one more criticism of these types of laws which questions the deliberative nature of crime. Three strikes and mandatory minimums are premised upon a deterrence theory of crime which stipulates that knowledge of penalties or consequences (either to you or others) will serve as a deterrent to crime. The reality is that many who commit crimes are not aware of the penalties. Similarly, many crimes are those of passion (second degree murder or manslaughter in some cases) or other crimes involve negligent behavior. The point is that many crimes do not appear to be the product of rational choice, but occur with lesser states of mind or intentionality. In some cases, potential offenders are not aware of punishments or otherwise do not fit the model of what would be considered to be the type of person who could be deterred by specific punishments or penalties. This limit on the deliberative nature of crime is often levied as a criticism of deterrence theory. Thus, in many cases, potential offenders are not the omniscient rational calculators that policy makers envision.

What does all this mean for proposals to regulate guns? First, many acts of gun violence, especially domestic abuse, are not deliberative acts but are the product of negligence, passion, or rage. Mandatory minimums and better law enforcement will not prevent these crimes. Second, those accused of gun violence may do plea bargains to avoid mandatory minimums. Third, many committing gun violence simply may not be aware of enhanced penalties and therefore not be deterred by the law.

Overall, the debate over guns points to the limits on what the law can do as a deterrent. This is not to say that the law cannot alter behavior, but simply not in the way current debates seem to suggest.


Author: David Schultz is a professor in the school of business at Hamline University. He can be reached at [email protected] 


Image courtesy of http://www.overdriveonline.com/files/2013/01/Gun-Control-Hot-Button-2.jpg.

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One Response to Gun Regulations and Limits of the Law

  1. Daniel Feldman Reply

    February 14, 2013 at 9:44 am

    Professor Schultz points us in the right direction. In the context of gun violence, law can and has altered behavior — in a bad way, in the federal Lawful Protection of Commerce in Arms Act (PLCAA) of 2005. While many criminals commit gun violence without weighing consequences, gun manufacturers can be presumed to weigh consequences quite carefully. Therefore, they could be relied upon to try to avoid successful lawsuits that would hold them accountable for continuing to supply guns to distributors and retailers that disproportionately leak guns to the crime market through straw purchasers. Indeed, because of record-keeping requirements, they know or should know which retailers are in that small percentage that leak the majority of such crime guns. But PLCAA was intended to immunize them against such lawsuits, and has largely succeeded. Repeal of PLCAA would alter behavior by reducing gun violence far more effectively than increasing penalties for gun crimes or enforcing law currently on the books.

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