Not Everyone With an Illegal Gun Deserves Jail Time

Why lock up a harmless pothead?

Most Philadelphians believe that violent crime is the city’s biggest problem. As a result, you might think severe punishment for anyone who illegally possesses a gun—regardless of whether the person committed a separate non-violent crime with it—is part of the solution. Mere unlawful possession, you’d argue, is enough to warrant mandatory imprisonment. No probation. No fine. No community service. No parole without a required minimum jail sentence. Good, you say. Bullshit, I say.

Mandatory imprisonment for any non-violent crime, including simple firearm possession, is wrong. Pennsylvania crime code section 6106 is titled “Firearms Not to Be Carried Without a License” and involves having a gun in a car or concealed outside one’s residence or place of employment anywhere in the Commonwealth. If an offender has no license to carry and isn’t eligible for such, it’s a third degree felony, which means he or she could face up to seven years in jail plus a $15,000 fine. Section 6108 is titled “Carrying Firearms on Public Streets or Public Property in Philadelphia” and involves possessing a gun without a license anywhere in the county. It’s a first degree misdemeanor, which means an offender could face up to five years in jail plus a $10,000 fine.

Neither crime requires a mandatory jail sentence, and that’s a good thing. In other words, a judge could, should, and often does simply impose a probationary sentence, a fine, court costs, and a supervision fee. And the reasoning is simple. No one was shot. No one was shot at. No one was injured. No one was threatened. The defendant did nothing more than possess a gun illegally. And as every reasonable person agrees, punishment should always fit the crime and the criminal.

Not Everyone Carrying a Gun Without a Permit Is a Violent Criminal

If 43-year-old father, husband, accountant, and recreation center basketball coach Joe Blow carried a gun to protect himself and his family as they travel throughout his notoriously violent neighborhood, but he never got a license due to a 20-year-old conviction for smoking and passing out joints at a college frat party, even the “Greek Father of Draconian Punishment” wouldn’t feel obligated to throw him in jail. In this situation, judges and Draco himself (often the same thing) would consider Mr. Blow’s mitigating circumstances, employment, family relationships, age, character, reputation, and likelihood of future criminality. Specifically, they would factor in what we lawyers call the Prior Record Score, which pertains to any previous convictions, and the Offense Gravity Score, which pertains to the seriousness (or lack thereof) of the current charge.

A mandatory jail sentence for this Joe Blow and many like him would be unjust, regardless of Philly’s violent crime problem. Sending a message, ostensibly a message of deterrence, by locking him up would be shortsighted, ineffective and just plain wrong. Penologists and criminologists have made it crystal clear that incarceration should be used only when restitution, fines, community service, probation and house arrest are insufficient to protect society primarily (but not exclusively) from violence or threat of violence. (By the way, just as no alcohol drinker or possessor should ever be jailed, neither should any drug user or possessor. Remember the 18th Amendment that criminalized alcohol, jailed alcoholics and recreational drinkers, and made the Al Capones of this country rich? How’d that turn out for us?)

To those who dismiss my assertions as the mere rantings of a bleeding-heart liberal, a criminal-coddling, soft-on-crime, fancy-pants defense lawyer, I say there’s nothing fancy about my pants. I also say that this country prohibits cruel (and unusual) punishment. Mr. Blow and those like him already face the heavy sanction of designation as a convicted felon along with a fine, community service, probation and house arrest, which carry the collateral damage of loss of employment, student financial aid, professional licensure, driver’s license, social services grants (e.g., public housing), foster-parenting eligibility, and child-adopting rights, as well as preclusion/dismissal from the military.

Gun Possession Laws in Pennsylvania Can Be and Have Been Cruel

In 2007, Sue Zortman, a 43-year-old white woman in the small town of Curwensville in Clearfield County (yeah, sometimes even white folks—the poor ones—get snagged up in the criminal justice system’s injustice) pleaded guilty to a marijuana charge in order to get either probation or a short county jail sentence. But the Common Pleas judge imposed a five-year mandatory state prison sentence because a gun, although not on Ms. Zortman’s person, was—get this—merely under her bed when the weed was in her house. However, when her lawyer proved that the gun was inoperable since even the cops and the prosecutor conceded it had no firing pin, the judge reversed himself and sentenced her to only nine months in county jail plus nine years probation afterward. End of story? Nope! The DA, citing state law as enacted by the legislature in 2004, appealed. In response, the state Supreme Court last year affirmed the Superior Court by ruling that a firearm doesn’t have to be operable (and also that it doesn’t even have to be loaded or even on the defendant’s person) for the mandatory five-year state prison sentence to kick in. So Ms. Zortman, a non-violent pothead, is now doing hard time with murderers.

Mandatory Sentencing for Guns and Drugs Is Totally Unwarranted

Yes, guns are dangerous. And yes, quite often dangerous people use them. But sometimes, in their blind zeal to get elected and re-elected, most politicians, both the legislative and judicial kind, cravenly pander to the many misled and emotional members of the voting public with superficial, sound-bite, tough-on-crime, quick-fix, knee-jerk (and regular jerk) so-called solutions to gun crimes.

Think about it: Not many, if any, politicians would have the courage to say it’s cruel, unjust and wrong to mandate five years in state prison in every single case in which “at the time of the … (drug) offense,” meaning when a few joints from the bedroom closet were handed out, your son/daughter’s “accomplice,” i.e., meaning his/her roommate in their one-bedroom apartment, has hidden or “concealed” under the bed his/her ex-boyfriend’s/ex-girlfriend’s old unloaded trigger-less gun “in close proximity to the controlled substance” in that closet. In such cases, your son/daughter and the roommate both go directly to jail for five years and do not pass go. So says section 9712.1 of the Pennsylvania Sentencing Code.

Mandatory sentencing, whether for guns, drugs, or most everything else is totally unwarranted. In regard to drug crimes, President George H. W. Bush said eliminating mandatory minimums “will result in better justice and more appropriate sentences.” Ronald Reagan-appointed Supreme Court Justice Anthony Kennedy stated “I’m against mandatory sentences. Mandatory minimums are harsh and in many cases unjust.” Richard Nixon-appointed Supreme Court Justice William Rehnquist noted that “(T)hese mandatory minimums impose unduly harsh punishment for first time offenders.” And he previously pointed out that “Our resources are misspent, our punishments too severe, (and) our sentences too long.” What? Some old conservative white guys and a middle-aged leftist black guy saying the same thing? I guess that means mandatory sentencing must be abolished immediately—especially for gun possession crimes in Philly.