Federal Prosecution of Gun Crimes, The New Mass Incarceration Tool?

In June 2015, the City of St. Louis announced that more homicide and gun possession cases would be turned over to federal prosecutors. This seemed to be an eerily familiar tactic of using demographics to covertly target a specific race for criminal prosecution and mass incarceration. According to the Bureau of Justice Statistics, Federal criminal cases usually begin with Federal law enforcement, not state level police.

Missouri Constitution Changes

The Missouri Constitutional Amendment 5, which 60 percent of voters supported this summer, declares the right to keep and bear arms “unalienable” and subjects laws restricting gun rights to “strict scrutiny.”

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See: Article I, Section 23, of the Missouri Constitution
The measure amended Article 1, Section 23 to read as:

Section 23. "That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. The rights guaranteed by this section shall be unalienable.  Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a court of competent jurisdiction."

Residents now have the right to keep ammunition and accessories, as well as the right to defend their families with firearms — a right previously limited to defending home, property and person. The amendment also repeals wording that states that the right to bear arms does not justify carrying concealed weapons.

Lawmakers can still pass laws limiting the rights of convicted violent felons and people with mental illnesses.

Gun rights taken too far?

I legally own a gun, but I did not vote for the amendment, I believe the right to bear arms has been extended too far. When the right to bear arms was written into the constitution, the United States was still a frontier nation. Owning a gun for protection, hunting for food and fur were survival necessities. There was also a lack of organized law enforcement, so the citizens policed themselves. The newly formed nation was still in a state of war and an armed population was considered necessary for its defense.

Guns during the late 18th century usually only shot one round before having to be reloaded and it took considerable time and effort by today's standard. The revolver didn't exist until 50 years later and the Gatling gun, the first rapid fire gun came during the civil war. When the right to bear arms was included, Congress couldn't have conceived of the automatic and assault weapons easily available today. In the era of military drones, individuals being armed will do little against government tyranny.

Having the right to bear arms doesn't mean having the right to bear any type of weapon that exists. When someone starts manufacturing drone-mounted weapons, will Americans have a right to bear those as well? After all, drone weapons would make it easier for hunters to find and kill their prey.

I believe the right to bear arms as it currently exists is outdated and needlessly causes people to die. Gun rights including conceal and carry, make it more difficult for law enforcement to determine, who is carrying because of a legitimate sense of self-defense and who is carrying for criminal intent. If the only people allowed to carry weapons were law enforcement officers, by default, everyone else carrying weapons would be considered criminals.

It's harder to detect when someone has a gun for the wrong reason, people who should not have them can easily blend in with legitimate gun owners and that is where the danger lies. Legal gun ownership is the only reason there are so many illegal guns. People either steal legally obtain guns from others, or people purchase guns legally and sell them to others who intend to commit crimes with them.

Rights For All

However, since they do exist, those gun rights should apply to everyone equally. Selective Federal prosecution could result in a situation where certain groups of people are enjoying gun rights and others are denied that right. Just as the "War on Drugs" was unequally applied, it's easy to see how the practice of federally prosecuting gun crimes could be.

The race issue won't be just that the judge is going, "Oh, a black man, I'm gonna sentence you higher", the police will go into low-income minority neighborhoods and that's where they will make most of their gun possession arrests. If they arrest you, now you have a prior, so if you plead or get arrested again, you're gonna have a higher sentence. There's a kind of cumulative effect. The same thing happened during the "War on Drugs".

St. Louis prosecutors could seek prosecution in federal court in cases that otherwise would be tried in St. Louis Circuit Court, an area with substantial minority populations.   Because the federal districts are much larger – they are made up of many counties – they are predominately white.  Crimes that are usually prosecuted in state courts can be prosecuted in federal courts based on any “federal interest” such as a carjacking.

In the report, Racial Disparities in Federal Prosecution (PDF), the following was stated: "Unwarranted racial disparities in decision-making may result from outright conscious animus, including the use of race-neutral criteria (such as class or geography) as a pretext for impermissible consideration of race, or from unconscious racial stereotyping."

"One former U.S. Attorney explained the complicated relationship between federal prosecutors and local law enforcement, in which federal prosecutorial decisions may be influenced by the decisions of local agents: “Where [law enforcement] … wants to get a quick statistic is often where … the racial disparity occurs. It’s a lot easier to go out to the ’hood, so to speak, and pick somebody than to put your resources in an undercover [operation in a] community where there are potentially politically powerful people.”

War on Drugs

During the "War on Black People," disguished as a "War on Drugs", that began with Nixon, exploded under Reagan and continued under Bush and Clinton; a very expensive drug, originally considered the affluent drug of choice, cocaine, was used to create a new cheap substance called "crack" cocaine.

Crack Epidemic

Demographically, crack users were mostly black, powdered cocaine users were mostly white. One might wonder how the legal penalties for crack ended up being 100 times worse than powdered coke.

Congress had been whipped into a frenzy by the drug-related death of basketball star Len Bias, which led to an overhaul of drug laws. It was widely reported that Bias died from a crack overdose. During hearings on the Anti-Drug Abuse Act of 1986, Congress heard bogus testimony from Johnny St. Valentine Brown, a narcotics cop who testified (with no actual evidence) that crack was 100 times worse and more addictive and damaging than regular cocaine.

Brown presented himself as an experienced narco-cop and a trained pharmacist, with several glowing letters of recommendation from important judges. Based on Brown's testimony, Congress included a 100:1 disparity in sentencing in crack vs coke, and it's widely seen as the first major push in the disastrous War on Drugs.

It was later discovered that Len Bias had actually died from regular cocaine, not crack. Years later in 2000, Brown plead guilty to perjury charges. Johnny St. Valentine Brown was convicted for lying about most of his credentials. He was never trained in pharmacology, and his recommendation letters were forgeries.

During his sentencing, Brown submitted several letters to the sentencing judge, in a bid for a more lenient sentence. After giving Brown a favorable sentence, the Judge contacted each of the letter-writers to thank them for interest in Brown's case. However, it was learned that Brown had counterfeited each of the letters and the supposed writers were "stunned" to learn of the forgeries. Brown was then charged with contempt of court and ordered to stand trial for the forgeries.

Heroin Epidemic

The fastest growing demographic of drug addicts are white communities. Suddenly instead of criminalizing drug use, now we want to treat it as a disease.

Instead of derogatory terms such as "crackhead", "abuser" and "junkie" to describe drug users when they were black; media now uses terms such as "chemically dependent", "psychological dependence on a drug" and "substance use disorder" to describe white drug addicts.

Drug addicts are now suddenly considered "patients" to be treated rather than "criminals" to be jailed. Below are some news articles announcing the demographics of heroin.

"When It Comes To Illegal Drug Use, White America Does The  Crime, Black America Gets The Time"

"America's typical heroin user is now a white woman in the suburbs"

"Heroin Use Surges, Especially Among Women And Whites"

Unfortunately, black folks believed the lies that were told, were quick to jump on the "crack" bandwagon and agreed that tougher sentences for drug users were the right thing to do. Too bad a whole generation of black men were jailed, often without treatment before society determined drug addiction is more of a medical than a criminal condition.

Dual Sovereignty and Double Jeopardy

There's a fifth amendment protection against double jeopardy right? Yes, but there are exceptions. Under the right circumstances, you can be tried twice for the same crime!

Double jeopardy only applies to one jurisdiction at a time. A state government cannot bring a second prosecution against you for the same state crime once you've been acquitted. The same goes for the federal government regarding a federal offense. If the offense if both a state and federal crime, a person can be legally tried more than once for the same crime.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ."The four essential protections included are prohibitions against, for the same offense:

  1. retrial after an acquittal;
  2. retrial after a conviction;
  3. retrial after certain mistrials; and
  4. multiple punishment

Dual Sovereignty allows the double prosecution of a person by more than one state for the same crime, where both states have jurisdiction for the prosecution, and notwithstanding the double jeopardy rule.

"The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offenses." Heath v. Alabama, 474 US 82 (1985).

The other issues become, if the Federal prosecution fails to secure a conviction, the City could then prosecute under Missouri's sovereignty rather than Federal. In United States v. Lanza, 260 US 377 (1922), in a case involving prosecution of liquor prohibition, the courts recognized the separate sovereignty of both state and Federal courts.

What to watch for

Watch to see who this tactic is used against. If it is only used against black defendants or mostly when the victim is white, that could indicate racial bias.

Prosecutors are afforded a great deal of power and are often consider the most powerful participant in the judicial process; so it's important to monitor the prosecutor's actions so you can make informed decisions during elections.

New Orleans Example

Federal prosecutors have repeatedly sought the death penalty in New Orleans, Richmond, St. Louis and Prince Georges County, Maryland, where African Americans make up the majority of the population in the county and the jury pools. The decision to prosecute federally in these jurisdictions alters the racial makeup of the jury pools from predominantly black to predominantly white. Those same federal prosecutors seldom seek the death penalty for crimes that occur in counties with largely white populations.

For example, the decision to federally prosecute three men for a murder that occurred during a bungled bank robbery in Orleans Parish in January of 2004, transformed the jury pool from one that was predominantly African American to a jury pool that was predominantly white. Indeed, ten of the jurors that sentenced John Wayne Johnson to death in that case were not from Orleans Parish, but from the white-flight parishes that gave rise to the election of white supremacist David Duke to the state legislature, the re-appearance of the Ku Klux Klan, and the appointment of a Justice of the Peace who refused to certify interracial marriages.

Black Prosecutors

St. Louis is roughly 48% black and 47% white according to the most recent census data, but the prosecutors of both the circuit and municipal court levels are white. Missouri county prosecutors are 99% white. There is only one black elected county prosecutor in the entire state; Shane Farrow in Moniteau County Missouri. Unfortunately, Mr. Farrow is being prosecuted himself for an accident that occurred, ironically in Columbia, MO, which recently gain national attention for racial discrimination.

Recent incidents in Ferguson, New York, Baltimore and most recently Columbia demonstrate the racial bias and divide that exist within our society. White prosecutors have historically been quicker to  bring charges against black suspects, especially when the evidence may not be compelling. The said reality is that many low-income defendants, even those that are innocent, may plead guilty to avoid the possibility of longer sentences.

See the Kansas City Star article, "Study finds that Missouri and Kansas prosecutors are overwhelmingly white".

Kilwa Jones

Kilwa Jones will be prosecuted in federal court for the robbery and shooting of Chris Sanna. Sanna was paralyzed when he was shot after leaving Busch Stadium with his girlfriend near the end of a Cardinals baseball game. Since the crime was committed on federal property, the prosecution can occur in federal court.

Let's not make the same mistake made during the "crack" frenzy. During my fifty years on Earth, I've lost family members and friends, including Lorenzo Rodgers, a St. Louis City Police Officer, to gun violence. I mentioned a retired army friend on a page concerning Uplands Park, MO; that friend was Lorenzo's cousin, which is how Lorenzo and I met.

Former police chief Clarence Harmon, then a Major, tried to recruit me to the department after Lorenzo's funeral. Had it not been for the fact that I had just attended my friend's funeral, I may have explored that option. I attended college with Harmon's son Steve, a retired police officer, and lawyer that announced in April that he might run for prosecutor.

I understand how enticing it can be to jump on the first available solution, but not a solution that does more harm than good. Let us not exchange "crack" with "gun possession" as the new mass incarceration tool. We shouldn't allow prosecutors to selectively prosecute.