Federal criminal law, like the laws of many states, requires offenders to receive increased penalties if they involve a firearm in their offense. Enacted in 1968 and codified as 18 U.S.C. [sections] 924(c) ("Section 924(c)"), this provision has been amended by Congress and interpreted by court decisions many times through the years. In 1984, the statute was amended to require at least five years imprisonment to be served consecutive to the sentence for the underlying offense, if a defendant "uses or carries" a firearm "during and in relation to" any crime of violence.(1) In 1986, drug trafficking offenses were added, and sentences of up to thirty additional years were mandated for more dangerous weapons, such as assault rifles or machine guns.(2) Further amendments in 1988, 1990, and 1994 required sentences of twenty years to life imprisonment without parole for offenders with prior convictions.(3)
A 1995 Supreme Court decision, Bailey v. United States,(4) narrowed application of the "uses" provision in the statute. But legislation enacted in the last weeks of the 105th Congress re-expanded the statute's scope to all forms of possession of a firearm "in furtherance of [the] crime."(5) Further, the legislation introduced a regime of even higher mandatory penalties for "brandish[ing]" or "discharg[ing]" a weapon, and increased penalties for repeat offenders and those that use certain types of dangerous guns.(6)
The Federal Sentencing Guidelines, promulgated in 1987 as part of the Sentencing Reform Act of 1984,(7) also contain sentence increases for offenders who involve a firearm or other dangerous weapon in many types of offenses. The sentence increases provided by the Guidelines operate under different standards and procedures than do the statutory enhancements, which give judges greater control over their operation and may make them easier to apply. Congress, however, has shown a preference for statutory mandatory minimum penalties over Guideline enhancements, and when the Guidelines and statutes conflict, the statutes "trump" the Guidelines and control the final sentence.
This Article briefly reviews empirical studies of the operation of mandatory firearm sentencing enhancements in the state courts, and their effectiveness at controlling gun crime. Data collected by the U.S. Sentencing Commission are used to determine how federal firearm penalties were implemented over the months immediately preceding and following the Bailey decision and to estimate rates of circumvention of the gun enhancements. Reasons for circumvention are discussed in light of this new data and previous research. Finally, the likely consequences of the recent legislation are discussed and options are identified for improving federal firearm sentencing to control gun crime, reduce unwarranted disparity, and achieve proportionate punishment.
A. Empirical Evaluations of Firearm Enhancements
Mandatory firearm sentence enhancements (FSEs) have been the subject of a series of empirical evaluations in the state courts. These studies have gradually clarified the laws' impact on police, prosecutor, and judicial behavior, and on prison populations and crime rates. The most general conclusion to be drawn is that passage of an FSE, in and of itself, does not guarantee a decrease in crimes involving firearms, or even a significant increase in imprisonment of gun-using criminals. While there is evidence that the laws are associated with a decrease in some types of crimes in a few states, the FSE laws taken together show little or no impact. In addition, given the complexity of factors affecting crime rates and variations in the way the laws are written and applied, it is difficult to assess what might make a particular FSE effective.
The first FSE to receive empirical evaluation was Massachusetts' 1975 "Bartley-Fox Amendment," which introduced a one-year mandatory minimum for illegally carrying a gun and a two-year minimum for committing a crime with one. …