Federalization No Way to Reduce Gun Crimes

by Tom Jenney
May 30, 2002

Arizona’s prosecutorial priorities are being hijacked by federal funds. That is bad news for gun owners, civil libertarians, and anyone who distrusts the amassing of centralized political power in Washington. 

Had it not gone down to defeat May 6, Arizona House Bill 2329 would have created a “crime gun interdiction task force” to trace all guns used in crimes. A key element of the plan was coordination with 22 new prosecutors from the federal Justice Department’s new program, Project Safe Neighborhoods.

In a study released May 28 by the Cato Institute, Washington lawyer Gene Healy takes a careful look at Project Safe Neighborhoods. The effect of the program is to federalize gun crimes—crimes that have traditionally been prosecuted at the state and local levels. The centerpiece of the program is the hiring of 113 new federal attorneys, and 600 new state and local prosecutors, to serve as full-time prosecutors of gun offenses. The logic behind the plan is that the federal system—with its tougher bond requirements, mandatory minimum sentences, and out-of-state prison sentences—provides a stronger deterrent to crime.

Ostensibly, Safe Neighborhoods is voluntary, enacted only with the cooperation of the state justice departments. But as with so many federal programs, it will be very difficult for state and local governments, whose prosecutorial agendas are swamped with drug-related cases, to resist the infusion of cash and attorneys.

In a sense, Arizona’s H.B. 2329 was an odd marriage between an unlikely pair of lobbies. The bill was sponsored by Democrats and backed by Americans for Gun Safety, a group that promotes gun control. But Project Safe Neighborhoods, which was enacted by the Bush-Ashcroft Justice Department, is the pet initiative of the National Rifle Association.

The NRA has been telling us for years—and rightly—that we need to punish gun crimes, not gun owners. But we shouldn’t let good rhetoric fool us into thinking that Project Safe Neighborhoods is a good idea.

Most importantly, Healy finds that Safe Neighborhoods is flagrantly unconstitutional. Under the Constitution, crime is manifestly a state and local matter. The federal government is given the power to punish certain categories of offenses, but those are highly limited exceptions.

These limits have been grossly abused, especially during the last 30 years, but Project Safe Neighborhoods would likely sound the death-knell for America’s unique balance of state and federal power, a balance that is widely considered to be America’s greatest political contribution to the world. If gun offenses become the preserve of federal prosecution, they will be followed in the coming years by every kind of crime conceivable.

The federalization of gun crime upsets a fundamental balance in the law between political legislation and the discretion of local judges in deciding the merits of individual cases. Safe Neighborhoods is also bad for federal judges, who do not need to have their busy civil dockets crowded out by criminal cases. As one judge complained about Virginia’s Project Exile, the prototype for Safe Neighborhoods, the system has “transformed [his court] into a minor-grade police court.”    

Further, selective prosecution allows federal prosecutors to discriminate in jury selection. If a defendant’s peers are deemed to be too sympathetic, the move to a federal court often allows prosecutors to select a jury from a different demographic pool. With Project Exile, the motivation for discrimination was racial: one of its admitted goals was to “avoid Richmond juries,” meaning black juries. 

There is no end to this kind of mischief, and gun owners should be wary. For example, federal prosecutors—perhaps those appointed by a future Democratic administration—could take gun cases away from gun-friendly rural juries and relocate them to a federal court that draws juries from an urban pool. And because of mandatory minimums, federal judges may not be able to provide any relief to otherwise law-abiding gun owners who run afoul of the nation’s many complex gun laws. In Healy’s paper, he gives the example of a gun owner who was sentenced to 15 years for a paperwork violation.     

Even with the demise of H.B. 2329, the lure of federal dollars and federal lawyers will continue to tempt Arizona’s legislators and prosecutors. Gun owners—and all who care about federalism and individual liberty—should encourage them to resist this dangerous temptation.