Report: Gun crime plan is unconstitutional

By SUSAN HELEN MORAN, for United Press International  |  June 18, 2002 at 5:37 PM
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WASHINGTON, June 18 (UPI) -- Project Safe Neighborhood, which was created by President George W. Bush and Attorney General John Ashcroft and promises tougher federal enforcement of existing state firearm laws, violates the U.S. Constitution and can lead to serious miscarriages of justice, according to a policy analyst and attorney with an influential Washington think tank.

Analysts at some think tanks agree with the conclusions of the study, "There Goes the Neighborhood," released by the libertarian Cato Institute. Others say the arguments of Gene Healy, the report's author, are unfounded and based on a narrow political agenda.

No one, however, disputes the far-reaching effect of the "Safe Neighborhood" plan. About $230 million is being spent on it in 2002, and another $200 is million is planned for 2003, to hire and train at least 113 new assistant U.S. attorneys and 580 state and local attorneys exclusively to prosecute firearm violations. The new assistant U.S. attorneys will coordinate the effort with state and local prosecutors in each of the 94 federal judicial districts across the country.

In his report, Healy argues that Project Safe Neighborhood flies in the face of the U.S. Constitution's Tenth Amendment, which enumerates the federal government's powers and states that all other powers not mentioned there will be left up to the states or the people to determine.

"The Constitution provides an exceedingly slender grant of authority over criminal law," enumerating only three crimes that are federal: counterfeiting, piracy, and treason," Healy says.

Safe Neighborhood brings with it a host of troubling consequences, says Healy. "Project Safe Neighborhood's federalization of crime ... distract(s) the federal courts by greatly exacerbating the strain on the court system," he says. Under Project Exile -- the prototype program for Project Safe Neighborhood -- "the number of civil trials has decreased (in federal court) to make way for a growing number of criminal cases, often run-of-the-mill crimes traditionally handled by the states," he says.

Under Project Safe Neighborhood, Congress can circumvent Constitutional limits, says Healy. By giving the states $75 million to hire and train the 580 new state and local prosecutors, Congress, not the states, is in charge because the funding is available only if it is used to hire the prosecutors who pursue gun law violations full-time.

"By employing spending power, Congress can direct the administration of state-level criminal justice ... and dictate prosecution of virtually any crime within the ambit of state police powers," says Healy. Here the separation of state and federal authority, as stated in the Constitution, is endangered, he says.

Healy says that Project Safe Neighborhood prosecutors now have the monetary incentive from the federal government to focus on the numbers and to indict and convict regardless of a case's merit, which leads to "assembly line justice," says Healy. "The incentive structure that Safe Neighborhoods sets up will lead to the proliferation of 'garbage' gun charges -- technical violations of firearms statutes on which no sensible prosecutor would expend his energy," he says.

Even worse, Healy believes, are the "appalling miscarriages of justice" for individuals. In April 1999, for instance, Brian Ford went to into a Fairfax County, Va., pawnshop to hock a Civil War era rifle for $35. A few weeks later, due to a police background check, Ford was arrested for being a felon in possession of a firearm because of previous convictions for burglary.

"Had his case gone to federal court, he would have faced extensive jail time," writes Healy. "But Fairfax did not have a federal Project Exile program (at the time), so the jury was free to recommend a $1,250 fine and no jail time."

Allowing prosecutors to determine the court -- federal or state -- in which an individual will be tried also causes severe problems, says Healy.

"In some cases, federal prosecutors have deliberately used Project Exile to secure a jury with a different racial composition than would otherwise be available at the state level," says Healy. "In Richmond, Va., where Project Exile was first implemented, the jury pool for the state-level circuit court is approximately 75 percent African American. In contrast, the jury pool for the Eastern District of Virginia, from which federal criminal cases are drawn in the Richmond area, is only about 10 percent African American," according to the report.

"Federalizing street crimes offends our Constitutional separation of powers and damages the federal and local justice systems by clogging federal courts with individual small-time criminal cases," says Andres Soto, policy director of the Pacific Center for Violence Prevention in San Francisco. The center, which is part of the Trauma Foundation at San Francisco General Hospital, addresses causes of youth violence.

A letter cited in Healy's report, from Richard L. Williams, chief judge of the U.S. District Court in Richmond, to Chief Justice of the Supreme Court William Rehnquist, confirms Soto's point: "Project Exile 'transformed (our court) into a minor-grade police court,'" it says.

"These tactics also create a false impression of state courts being incapable of handling serious crime," Soto adds.

"If you look at the (state) court records (in Richmond before Project Exile) prosecutors have had good reasons not to prosecute," says John Lott, a resident scholar at the American Enterprise Institute in Washington. Lott agrees with Healy that Safe Neighborhoods give the wrong incentives to prosecutors. "You have ... the local government getting benefits without bearing the costs," says Lott. When federal monetary incentives are used to control state or local agencies, they often do not work as intended, he says.

Analysts at several other organizations disagree with Healy, including think tanks and lobbying groups with very different political tilts, such the liberal Progressive Policy Institute, the National Rifle Association, and Handgun Control, Inc.

"Instead of chasing gun makers into court, this administration is going to chase violent criminals into prison," said James Jay Baker, executive director of the NRA Institute for Legislative Affairs, in his speech at the organization's 2002 annual meeting. "Attorney General Ashcroft ... is going to run the system as Congress intended, so that only criminals, not honest citizens, are denied access to firearms," he said. "We welcome his move to take Project Exile nationwide. It is a move long advocated by this organization," he said.

"The Supreme Court has looked at all these (possession) statutes over the years, and I don't think (Safe Neighborhoods) is (causing) a Constitutional crisis," says Sean Kirkendalo, director of government relations for PSComm, LLC. "Over the long haul, the idea is to turn the effort back to the states," says Kirkendalo, who works on policy issues with John Cohen, director of the Progressive Policy Institute's Community Crime Fighting Project.

Instead, Kirkendalo worries that Safe Neighborhoods is not adequately publicized. Project Exile's success was based largely on its publicity campaign, he says. Billboards along highways in Richmond warned potential violators: "Illegal gun possession gets you five years in federal prison."

When he announced Project Safe Neighborhoods, Attorney General Ashcroft made a strong case for its effectiveness: "Since 1997, when Project Exile was begun in Richmond, homicides have dropped 48 percent, the lowest level since 1983," he said.

Healy, however, finds even this argument unconvincing. "Gun-related homicides and other violent crime dropped significantly all across the country during the same time period (from 1997 to 1999), and criminologists do not agree about the cause of that decline," he says. "If a more aggressive crime control effort would bring substantial benefits, there is absolutely no reason that it cannot be undertaken by state law enforcement personnel," he says.

Healy believes the president should withdraw his support for Project Safe Neighborhoods and adhere to his campaign promise to "respect federalism and the Tenth Amendment."

"Federal, state and local resources are better spent supporting violence prevention efforts and comprehensive regulation of firearm manufacture and distribution, than on the costly and ineffective federal prosecution of individual gun crimes," says Amy Fairweather, co-author with Soto of a study on Project Exile, and an attorney with the Pacific Center for Violence Prevention.

"Promising federal programs include federal financial aid for community-based violence prevention programs, a uniform database of firearm death and injury ... and regulatory oversight of gun manufacturers, distributors, and dealers," says Fairweather.

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