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Democrats Should Deliver On Gun Control That Doesn’t Feed Mass Incarceration

After last week’s election victories, will Virginia Democrats address gun violence in ways that don’t rely on criminalization?

New York City, 2012Tony Savino / Corbis via Getty Images

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Last week, voters delivered decisive wins for Democrats in Virginia, giving the party full control of state government for the first time since 1994, according to the New York Times. Daniel Nichanian of The Appeal: Political Report highlighted the victories of three Democratic prosecutor candidates running on decarceration platforms in the state:  “The Election Day results overhauled Virginia’s landscape in particular, broadening the geography of decarceration, and paving the way for advocates to scale up county-level reform into demands for statewide change.”

“The legislature could tackle proposals to decriminalize pot, restrict disenfranchisement, lessen sentencing guidelines and felony thresholds, and strengthen discovery rules,” Nichanian wrote. The newly elected prosecutors all pledged to challenge the lobbying power of the Virginia Association of Commonwealth’s Attorneys, the state prosecutors group that consistently opposes reform.

With Democrats taking control in the state and voters in multiple jurisdictions supporting prosecutor candidates who believe it is their responsibility to tackle mass incarceration—in their jurisdictions and at the state level—the stage should be set for the state to shrink the footprint of and repair some of the harm inflicted by the criminal legal system.

For this reason it is especially important to follow one of the major issues that Virginia Democrats ran on: gun control.

For too long, the central debate in gun control policy has been between Republicans who oppose limits on gun ownership and Democrats who advocate limits. In this debate, the National Rifle Association and its adherents are the easy villains. But this obscures the questions about the type of policies adopted, as Daniel Denvir has pointed out. For too long, gun control has defaulted to using criminal law and the punishment system, with the familiar, inexcusable risks for people of color, particularly Black, Latinx, and Native men and boys.

In a 2015 law review article, Benjamin Levin, a professor at the University of Colorado Law School, argued that the lessons of the war on drugs should be applied to gun control policies.

“Like criminal drug statutes, existing and proposed criminal gun possession statutes should also trigger skepticism from critics of mass incarceration,” Levin wrote. “If we are concerned about mass incarceration because of its social or economic costs, we should subject to close scrutiny any legislation that further ramps up punishment or potentially increases the number of individuals serving extended sentences.”

Levin looked at how gun possession laws were the product of two troubling trends. Criminal laws that target gun possession, he wrote, “stand at once as markers of two concurrent, and seemingly inconsistent, trends in U.S. penal culture: criminal law as the regulatory mechanism of choice and punitive, extended incarceration as the dominant form of punishment. That is, the state governs through crime, stripping the criminal offense of many of its exceptional qualities; yet, the state punishes as though the criminal law remains exceptional, a space reserved for those who have violated the deep-seated moral values of the community, rather than those who have fallen afoul of yet another legislative diktat.”

What is urgent, Levin wrote, is to consider how we might “imagine a legal architecture for gun regulation that avoids the pitfalls of the War on Drugs.” And in what might serve as a caution for (mostly Democratic) legislators and journalists around the country, he noted that, “We live in a world of hard cases, and criminalization and turning to criminal punishment should be hard. Recognizing the seriousness of a social problem should not necessarily be enough to trigger a harsh criminal solution. Recognizing criminal law’s staggering social costs should be the legacy of the War on Drugs.”

Last month, The Appeal’s Media Frame column looked at one-sided reporting on gun violence in Charlotte, North Carolina. “When the problem of gun crime is examined through the eyes of law enforcement only, the solutions to the problem are unsurprisingly myopic,” wrote Adam Johnson. “Those interviewed in the piece believe the answer lies with ‘tougher laws’ and more resources for police and prosecutors. The well-documented idea that gun violence could be prevented or deterred by investing in resources into health clinics, anti-poverty programs, recreation centers, schools, public parks, or other public services that improve community ties and increase standards of living is never explored.”

The debates, which develop momentum after mass shootings, also ignore the complexity of gun violence and the reality that gun deaths are largely suicides and homicides that disproportionately affect communities of color. Black men and boys make up 6 percent of the U.S. population but are more than half of the country’s gun homicide victims.

(In a policy plan released last month, Senator Cory Booker, a Democratic presidential candidate, and Representative Steven Horsford introduced a bill that would fund a multi-year approach to addressing gun violence that does not default to using the criminal legal system. The plan calls for the allocation of $90 million a year to reducing gun violence. As The Guardian reported, the “bill does not include any gun control provisions: it’s focused on strategies that prevent shootings by focusing on the people, not the guns.” It is explicit about lessening the reliance on policing, requiring cities to give at least half of their federal grant dollars under the bill to community organizations that provide services to high-risk people, or to a public department “that is not a law enforcement agency.”)

In Virginia, the “gun control bills” championed by Governor Ralph Northam bills seem to rely on further criminalization of gun possession. As voters, media outlets, and state representatives and prosecutors move on from the recent elections, we should pay attention to whether the measures that Democrats introduce to reduce gun violence will build on or flatly contradict the recognition that mass criminalization and mass incarceration are not the social policies we need.