Reason Magazine - Staff

Straight Shooters

info@reason.com (T. Markus Funk) — Fri, 01 Aug 1997 00:00:00 EDT

The Great American Gun Debate, by Don B. Kates and Gary Kleck,
San Francisco: Pacific Research Institute, 256 pages, $16.95

Gun control is one of those subject on which virtually everyone has an opinion--usually strongly held. Whether pro- or anti-gun control, those opinions are often founded not on facts but on raw emotions fueled by widely publicized misinformation concerning gun use and misuse. Like few books before it, The Great American Gun Debate: Essays on Firearms and Violence, by Don B. Kates Jr. and Gary Kleck, pulls together the paramount sociological and criminological issues involved in this very public debate. The result is a readable, concise, and convincing argument that prohibiting civilian firearms possession is an ineffective--indeed, a counterproductive--means to deal with America's crime problem.

Although those who reflexively oppose any regulations on gun ownership may recoil at the authors' claim that "instant background checks, gun owner licensing, and permit-to-purchase systems seem preferable" to outright prohibition, the authors make an airtight case for the social utility of gun ownership. In fact, The Great American Gun Debate takes its analysis a step further by exploring a related--and under-examined--question: Why is there so large a gap between the media's pervasive harping on the unredeemed dangers of firearm ownership and the stream of recent scholarly studies demonstrating the benefits of civilian gun possession?

Kates is a San Francisco-based civil liberties lawyer and criminologist; Kleck is
a criminology professor at Florida State University. They are among the most widely recognized and frequently cited experts on firearms issues. Kates authored a 1983 Michigan Law Review article, still the most widely cited treatment of the Second Amendment, that began the small flood of legal scholarship on the constitutional status of private firearms possession and use. Kleck wrote the authoritative Point Blank (1991) and has conducted research that has conclusively demonstrated the social benefits of civilian gun ownership.

Interestingly, the authors can't be easily categorized as libertarian or even conservative. In fact, both are rather "conventional" modern liberals, a predisposition they share with many other anti-gun-control scholars. This may surprise some readers, but it turns out that most academics who oppose gun prohibition are liberal, non-hunting civil libertarians who have no connection to, or interest in, the National Rifle Association and its legislative agenda. Kates and Kleck are quick to point out that this scholarly detachment and intellectual honesty stands in telling contrast to the results-oriented anti-gun research that inevitably dominates the headlines.

They also persuasively argue that legislation sought by the major anti-gun groups has nothing to do with "gun control," and everything to do with the ultimate objective of outright prohibition of guns in private hands (as prohibitionists Jim and Sarah Brady have put it, "no private citizen has any reason or need at any time to possess a gun"). The anti-gun lobby, contend Kates and Kleck, takes what it can where it can, saying whatever it must say to justify its claims. Kates and Kleck suggest that reasonable controls, such as preventing felons and the insane from possessing firearms, are both constitutional and criminologically sound in light of the current research. But, they maintain, outright prohibition of civilian firearm ownership is neither.

While the authors address some constitutional issues, the focus of The Great American Gun Debate is a utilitarian analysis of gun ownership and its effects on criminals and law-abiding citizens alike. This is a strategy that is well worth pursuing: As scholars such as Northwestern Law School's Daniel Polsby have emphasized, the social utility of handguns, not the Second Amendment, is what does and should concern the public most when it comes to gun laws. The authors do note, however, that the academic literature on the Second Amendment is so heavily weighted in favor of interpreting it as protecting the right of individual Americans to possess a firearm that this interpretation has come to be known as the "Standard Model."

The Great American Gun Debate examines the normative consequences of civilian firearms ownership in great depth and very convincing detail, provocatively starting with the idea that the state offers relatively little security to its citizens. (In fact, in 1989's DeShaney v. Winnebago County Department of Social Services, the Supreme Court held that the police have no affirmative obligation to provide protection, "even where such aid may be necessary to secure life, liberty, or property interests.") Fewer than 150,000 police officers are ever on duty at a given time in a country of over 3 million square miles and more than 260 million people. Estimates indicate that a 12-year-old child has an 83 percent chance of being the victim of a violent crime in his or her lifetime, but Department of Justice statistics reveal that for all crimes of violence, the police respond to 911 calls
within five minutes only 28 percent of the time. Little wonder, then, that polls consistently show the public to have little confidence in the police's ability to protect them from criminals. Such a state of affairs is one reason why the National Association of Chiefs of Police, the American Federation of Police, and the National Police Officers Association of America all are on record as favoring civilian gun ownership.

The threat of victimization is also the main reason that nearly 50 percent of American homes have guns, a fact that bothers criminals perhaps even more than it does media liberals. Kates and Kleck recount a 1986 study in which sociologists Peter Rossi and James Wright interviewed 1,874 felons in 10 states. Rossi and Wright found that criminals are more concerned
about encountering armed citizens than they are about running into police. The criminals' fear is well-founded: Although there are only about 1.7 million annual arrests for violent crime and burglary, Kleck estimates that there are at least 2.2 million defensive uses of a firearm by civilians each year (most involving incidents in which a gun is not actually fired). This may help explain why areas with high civilian firearm ownership have lower crime rates than areas where firearm ownership is less widespread.

But most media accounts of guns and gun violence either ignore or suppress these sorts of basic findings. And they're no better when it comes to gun-related accidents. Contrary to the media-generated perception that young children are dying every day as a result of firearm accidents, 1991 National Safety Council figures show that handgun accidents killed 10 to 15 children under the age of 6--roughly the same number poisoned after accidentally ingesting iron supplements. Consider that a child under the age of 6 is 25 times more likely to drown in an unattended swimming pool or bathtub than to be killed in a handgun accident.

Nor is it common for a gun-wielding civilian to shoot a family member or friend whom he mistakes for an intruder. Only about 2 percent of all fatal gun accidents involve this scenario--which means there is less than a 1-in-90,000 chance that a defensive use of a gun will result in this type of accident (the police, for their part, have an error rate roughly 11 times higher). Similarly, one would never know from watching TV or reading newspapers that an offender manages to take a gun away from an armed victim only 1 percent of the time or less, or that shots are fired in fewer than 2 percent of all robberies during which a victim defends herself with a gun.

Kates and Kleck cast a glaring light on specific claims of gun-control proponents as well. For instance, Handgun Control Inc. suggests that the "best defense against injury [when attacked by a rapist, robber, or other felon] is to put up no defense--give them what they want or run." Such advice, regularly repeated in newspapers, ignores unambiguous criminological evidence showing that victims who submit to victimizers are injured twice as often as those who resist with a firearm.

Anti-gun advocates seem to have an equally shaky grasp of the types of people who engage in gun-related violence. For instance, according to a widely circulated pamphlet by the National Coalition to Ban Handguns (now going by the more innocuous name Coalition to Stop Gun Violence), "Most murders are committed by previously law abiding citizens." But as Kates and Kleck document, no evidence whatsoever supports such an outrageous misstatement. Indeed, study after study has established precisely the contrary: Murders are committed by people whose lives have been filled with violent and anti-social behavior. Murder is overwhelmingly a crime committed by individuals already living criminal lifestyles, and it is quite clear that law-abiding people are not magically transformed into killers by the mere presence of a firearm.

One study showed that roughly 90 percent of murderers have prior adult criminal records, with an average criminal career of six or more years that includes four major felony arrests. The typical "acquaintance homicide" occurs among rival gang members, drug dealers, or other organized crime figures. Even domestic homicides, which accounted for roughly 12 percent of all U.S. homicides in 1994, do not happen without warning. Ninety percent of the time, the police had been called to the residence at least once in the two years prior; in 54 percent of the cases they had been called five or more times.

Prohibitionists and their media allies consistently refuse to face this reality, stark as it is. For example, in the mid-1980s, when Florida was considering liberalizing its concealed-carry laws, newspapers were filled with editorial predictions that such changes would surely lead to the "Gunshine" State's streets running red with blood. In 1987, Gov. Bob Martinez signed a bill permitting citizens to carry concealed weapons if they passed a fingerprint-based background check and the required gun safety classes. The newspapers turned out to be wrong: Between October 1, 1987, and December 31, 1995, only five violent crimes involving permitted handguns were committed, and none of these resulted in fatalities. What is more, the FBI's Uniform Crime Reports shows that after Florida adopted its concealed weapons law, which resulted in roughly 300,000 issued permits by 1995, the handgun murder rate actually dropped by 27 percent.

Firearm statutes have long forbidden the possession of a gun by the relatively small group of aberrants most likely to commit violence (e.g., felons and the insane). With such restrictions in force, say Kates and Kleck, it makes no sense to disarm law-abiding citizens.

The question remains, however: If all the statistics support gun ownership as a social good, why is gun control--or even outright prohibition--still a popular cause? Kates and Kleck suggest that unsubstantiated claims about gun use, such as the oft-repeated and baseless factoid that guns are 43 times more likely to be used in a crime than for legitimate self-defense, have been so successfully incorporated into conventional wisdom that, to most citizens, the topic is not even worthy of debate. For many people, the "great American gun debate" is over and done with.

Ironically, say Kates and Kleck, such a reality is at least partly the gun lobby's own fault. "Until about the mid-1970s," they note, "academic writing about guns was virtually monopolized by crusaders seeking to validate their contempt and loathing for guns and gun owners. Neutral scholars eschewed the gun issue, and the gun lobby, though able to exert a great deal of pressure on the legislators, was incapable of, and uninterested in, addressing intellectually sophisticated audiences. But this intellectual default was a calamity for the gun lobby. It and its supporters may hold their views without feeling any need
for factual or scholarly support; but the biased, problem-oriented pre-1976 literature indelibly shaped a conventional wisdom which many humane and responsible citizens who do not own guns embrace and which the popular media continue to dispense."

The result is that anti-gun stories circulate constantly in the media, with few plausible counterparts. Kates and Kleck do an impressive job of documenting pervasive media bias against guns and gun ownership. They discuss, for instance, a 1991 study analyzing the content of national newspaper stories on gun issues which found that, of the 71 percent containing net bias in one direction or another, 81 percent were biased in favor of gun control. However, say Kates and Kleck, the media's unfriendliness to gun rights doesn't represent the sort of organized campaign to misinform the public that many gun rights advocates envision. Rather, evidence of the benefits of gun ownership does not "fit into [most reporters'] general world view as it pertains to guns and gun control." By and large, the authors suggest, journalists are unfamiliar with firearms and the criminological studies examining their use and abuse. Hence, journalists are more likely to buy uncritically the arguments of media-savvy, and ideologically sympathetic, gun control advocates.

Although the authors cite the "unequal character of the propaganda struggle over firearms," they seem not to have specific suggestions concerning what anti-prohibitionists must do to correct biased reporting. Similarly, the authors' attack on the public health literature--their nearest approach to intemperance in this book--suggests no corrective for the stream of what they see as results-oriented pseudoscience put out by, among others, the Centers for Disease Control and Prevention's National Center on Injury Prevention and Control. (See "Public Health Pot Shots," April 1997.) But reform is not, after all, the theme of The Great American Gun Debate. Accurate description is.

Yet there is a perceptible, if gradual, shift occurring, at least in certain intellectual circles. Although recent scholarship demonstrating the benefits of gun ownership has yet to convert many mainstream journalists (who typically are not sophisticated consumers of criminological studies), such work has had a rather dramatic effect on those professional skeptics who make their living analyzing, criticizing, and proposing legislative responses to contemporary legal problems. A survey of the relevant literature reveals numerous scholars who, like the author of this review, concede in published articles that they entered the debate believing that the Second Amendment protects only firearms possessed by members of the National Guard or some similar official group, and that civilian firearms possession was an odious evil that should be eliminated.

After examining the competing constitutional and criminological arguments and studies more closely, however, more and more scholars are being persuaded by the anti-prohibition and pro-individual rights arguments, and are ultimately disavowing their prior views. Tellingly, as far as I can determine, not a single scholar who has written in favor of strict gun controls has similarly attested to being converted from a previously anti-prohibition position. This fact, in and of itself, may not establish the intellectual honesty of those "converted" academics who now oppose gun prohibition, but it does suggest that the argument for gun prohibition rests on shaky intellectual ground. It also seems quite plausible that, just as academics in the late 1960s and '70s helped create an anti-gun mindset, today's growing anti-prohibition scholarship may set the stage for a broad-based change in attitude toward gun ownership.

Whether a wholesale revision of attitudes toward guns is in the offing, at least this much is certain: For those already skeptical of prohibitions aimed at civilian firearm possession, The Great American Gun Debate will gratify by providing the sort of well-reasoned arguments and solid data that were previously available only by meticulously wading through volumes of dry academic journals. Perhaps more important (and impressive), for those who view gun prohibition as a welcome response to armed criminal violence, Kates and Kleck will challenge at every turn bedrock assumptions about the nature and impact of gun ownership. Indeed, some open minds may even be changed.

Young & Arrestless

info@reason.com (T. Markus Funk) — Thu, 01 Feb 1996 00:00:00 EST

Daniel Doe (a pseudonym) is a violent man who, like most violent men, was also a violent teen. At age 12, police arrested him for vandalizing a neighbor's house--he had destroyed the furniture, spray-painted the walls, and drowned a caged pet bird in the bathtub. Two years later, he was burglarizing an apartment when the elderly occupant returned home and confronted him. In the scuffle that ensued, the old man broke his hip. When the man died from pneumonia several days later, Daniel was charged with and convicted of involuntary manslaughter.

Daniel's first "adult" arrest came at age 19, when he broke into an occupied home and severely beat the 45-year-old woman who lived there. By the time he was sentenced for that attack, however, his juvenile record, pursuant to Ohio law, had been "expunged"--destroyed. For the second time, Daniel was a first-time offender. Hence, a Cleveland judge, ignorant of Daniel's violent, extensive, felonious past, sentenced him to probation. Two months later, Daniel burglarized yet another house, this time beating the 81-year-old man who lived there to death.

Had the judge known of Daniel's violent criminal past and his demonstrated lack of any rehabilitative potential, there's little doubt that Daniel would have gone to the penitentiary before he had the opportunity to kill the old man.

But the judge didn't know because the law said that he shouldn't know.

Most states have statutory provisions that allow--or even mandate--the expungement of juvenile records once the juvenile turns a certain age. Sometimes the records are actually destroyed; sometimes they are merely "sealed." The practical effect of such legislation is to allow a minor who has committed criminal or, in the lingo of the juvenile courts, delinquent acts to permanently erase his or her record, usually at age 17 or 18. The stated goal of this policy is to allow the juvenile offender to enter adulthood with a proverbial clean slate, thereby shielding him (or, less likely, her) from the negative effects of having a criminal record.

Supporters say expungement is an enlightened practice that merely forgives youthful transgressions. But expungement is actually an astonishingly counterproductive policy that benefits only young criminals. The practice prevents society from acting on the simple fact that those who have committed crimes in the past are likely to commit crimes in the future and hence should be treated differently from true first-timeoffenders.

By making it virtually impossible to collect meaningful data about juvenile delinquents, expungement also makes it difficult to evaluate crime-prevention and rehabilitation programs. Outside of the criminal justice sphere, the policy has other deleterious effects. Employers, for instance, can't know whether potential employees are prone to stealing or other criminal behaviors. Given these various costs, it's not surprising that a number of states are seriously reevaluating the sealing of juvenile records.

Expungement laws hearken back to a simpler past. The practice "was designed to deal with delinquents who stole hubcaps, not those who mug old ladies," notes sociologist Rita Kramer in At a Tender Age: Violent Youth and Juvenile Justice (1988). Gargantuan increases in violent juvenile crime underscore the point. Today's juvenile offenders are generally distinguishable from their adult criminal counterparts only by their age--an arbitrary factor indeed. Juveniles are the fastest growing segment among violent offenders. Between 1983 and 1992, according to FBI estimates, violent crime committed by juveniles increased 57 percent. Murders and non-negligent manslaughter rates jumped 128 percent, aggravated assault 95 percent, and rape 25 percent. And cohort studies discussed in Neil A. Weiner and Marvin E. Wolfgang's Violent Crime, Violent Criminals (1989) show that juveniles account for up to 35 percent of all male police contacts.

The philosophy underlying expungement legislation can be traced to what is known as the Chicago School of Criminology, which, during the 1920s and '30s, championed environmental explanations of criminality. The Chicago School (the term refers to a broad-based intellectual movement that started at the University of Chicago) rejected traditional criminological theories that focused on issues of individual morality and volition and concentrated instead on factors external to the individual. This new model viewed America as a "criminogenic" society in which ghettos and slums taught the people who lived there how to become criminal by giving them deviant cultural values.

This environmental model reached its high-water mark in the early 1960s with Robert K. Merton's "Strain Theory," which posited that America's supposed obsession with ambition and economic success led to crime and deviance. Strain theory viewed delinquency as arising from the frustration felt by individuals who were unable to achieve culturally defined goals because they were denied the institutionalized means of doing so.

In the 1960s--the decade during which most expungement statutes currently in force were written--expungement advocates espoused what is known as the "labeling" or "social reaction" model. The labeling perspective is based on the premise that the very act of labeling those who are apprehended as "different" creates deviants who are different only because they have been "tagged" with the deviant label.

As criminologist Frank Tannenbaum, a prominent labeling-perspective theorist, argued in his 1983 book Crime and the Community, "The process of making the criminal...is a process of tagging, defining, identifying, segregating, describing, emphasizing, making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing,and evoking the very traits that are complained of." Hence, the only way to rehabilitate juvenile delinquents is to send them into adulthood with this label detached.

Aside from any philosophical and common-sense disagreements one may have with the labeling theorists, the major question regarding expungement is whether juvenile delinquents are "normal" kids who simply make youthful mistakes that are unlikely to be repeated in adulthood.

The answer is no. Delinquents are substantially different from non- delinquents. Research suggests that delinquents are more defiant, ambivalent about authority, emotionally unstable, extroverted, fearful of failure, resentful, hostile, suspicious, and defensive than non- delinquents. In their book From Boy to Man, From Delinquency to Crime (1987), University of Pennsylvania criminologist Marvin E. Wolfgang and his co- authors found that there is an extremely strong correlation between juvenile delinquency and adult crime, and that juvenile delinquency is the "best predictor of adult criminality." John Monahan, in his 1981 book Predicting Violent Behavior, has found that individuals with juvenile records are four times more likely to become adult offenders.

Similarly, a study tracing the criminal careers of 1,000 juvenile boys discussed in Sheldon and Eleanor Glueck's Of Delinquency and Crime (1974) found that 73.2 percent of those who could be located had been officially cataloged as repeat offenders within 10 years of their first appearance in juvenile court. An extensive FBI study discussed by Florida State University criminologist Gary Kleck, in Point Blank (1991), estimates that 74.7 percent of all murderers had arrests for violent felonies or burglaries, and murderers averaged four prior major felony arrests over a criminal career of at least six years. Those figures do not even begin to approximate the actual criminal histories of those individuals, since being arrested is itself a highly atypical consequence of violating the law. It is also worth noting that those figures would be even higher if juvenile expungement statutes did not artificially deflate them.

In fact, expungement statutes also make it virtually impossible to collect the kind of data that might lead to more effective crime prevention. In a 1992 article in the Journal of Urban and Contemporary Law, Carlton Snow, the former dean of Willamette University College of Law, argued that expungement statutes "impinge on a democratic society's ability to inform itself about all aspects of the criminal justice system....Regardless of whether juvenile records are merely `sealed' or actually destroyed, the data becomes less available for research purposes." The result: The general public is unable to evaluate the juvenile justice system accurately, and sociologists and criminologists are left less able to study important aspects of criminal behavior.

And, as the case of Daniel Doe illustrates, expungement often prevents the courts from adequately assessing the danger a younger criminal poses to society.

The functions that judges perform at sentencing--one of which is to determine the convict's rehabilitative potential, as evidenced by his response to prior convictions--are simply too important to allow incomplete information concerning the nature and seriousness of an individual's criminal past to interfere with the proper dispensation of punishment.

That's one of the major points in United States v. Davis, a 1995 case involving a convicted felon's due process challenge to the United States Sentencing Guidelines' directive to consider juvenile convictions in calculating a defendant's prior criminal history. Writing for the court, Judge William J. Bauer of the Seventh Circuit Court of Appeals powerfully stated: "[I]t is imperative that the defendant's sentence account for his criminal history from the date of birth up to and including the moment of sentencing. The consideration of the defendant's juvenile record is essential, because it is clear that the `magic age' of eighteen, seventeen, or sixteen, whatever it may be in a specific state, cannot wipe out all previous contacts with the law. The pubescent transgressions...help the sentencing judge to determine whether the defendant has simply taken one wrong turn from the straight and narrow or is a criminal recidivist."

Expungement similarly interferes with effective law enforcement, since police officers are impeded in their efforts to identify patterns of criminal conduct. There is voluminous case law stating that arrest records serve a valuable law-enforcement purpose, that the dissemination of criminal records promotes the public welfare, and that even "unresolved" arrest records provide significant information and aid in the resolution of criminal actions. When the police are investigating criminal activity, for instance, they routinely examine the prior criminal records of potential suspects to see if there is evidence of a modus operandi. Juvenile records are routinely withheld, making the police's job that much more difficult.

Expungement exacts costs beyond crime and punishment. It prevents employers from making fully informed hiring decisions, such as whether applicants are likely to pilfer. Compelling employers to hire individuals without full insight into their criminal propensities is a heavy penalty to force upon businesses. In Privacy, Secrecy and Reputation, Seventh Circuit Court of Appeals Judge Richard Posner says that arguments for expungement are "particularly weak in the context of employment, where competition exacts a heavy penalty from any firm that makes irrational employment decisions."

Perhaps more important, expungement forces employers into a very risky position from a workplace liability perspective. Under the common law, an employer has a duty to provide a safe work environment, and this duty has gradually been extended to hiring safe employees, since, in terms of legal analysis, a dangerous employee creates risks comparable to a defective machine. As Carlton Snow has pointed out, "Under the theory of vicarious liability, hiring applicants with expunged juvenile records is potentially
hazardous for employers and employees alike." Since an employer can be held liable for an employee's torts while on the job, says Snow, "complete knowledge about an applicant would allow an employer to take appropriate steps to decrease any liability resulting from an employee's subsequent conduct."

The explosion in juvenile crime and the growing intellectual disenchantment with expungement statutes are beginning to have an effect: A number of states are rethinking the policy of sealing or destroying juvenile records. This past spring, for instance, Connecticut passed a law that allows delinquency records to be disclosed to police, school officials, social service workers, and "anyone with a legitimate interest in the information." Republican Pennsylvania Gov. Tom Ridge is pushing to make "it harder to expunge
juvenile records" and legislation passed last February lets judges review juvenile records before setting bail. Similar initiatives are underway in Louisiana, Texas, and Kentucky, where Democratic Gov. Paul Patton has announced a plan to "lift the secrecy of juvenile court proceedings for convictions of serious felony crimes."

At bottom, expungement statutes are attempts to lessen the penalty that public opinion places upon former offenders. But the "stigma" of having been a juvenile delinquent should only be of concern insofar as it incorrectly characterizes an individual who has been able to reform his life since his brief brush with the law as a juvenile. If a former delinquent remains engaged in criminal activity, then it is clear that the juvenile justice system has failed in its goal of rehabilitation, and concern for the offender should be replaced with concern for protecting society from a predatory recidivist.

And even if one accepts the notion that those who have committed a juvenile indiscretion will outgrow their reckless behavior, it remains necessary to differentiate between those who in fact can be rehabilitated and those whose rehabilitative potential is negligible--i.e., career criminals.

But current expungement statutes rarely make such a distinction, choosing instead to delete a teenager's crimi-nal record upon reaching majority (or sooner), regardless of whether it consists of a one- time arrest for public urination or numerous convictions for assault, burglary, or rape. While expungement may be appropriate for the one- time child offender (who presumably has been rehabilitated), it is wholly inappropriate for a young chronic criminal who, based on numerous incidents of re- offending, shows no rehabilitative potential. As the number of offenses increases, the underlying delinquency becomes more troublesome, and it is likely that an anti- social pattern will continue throughout a criminal's adult years.

Given that adult criminality is often predicated upon juvenile delinquency, it follows that criminals have the most to gain, and that society the most to lose, from any expungement scheme that allows individuals to start with a "clean slate"--or, more appropriately, a cleaned slate--upon reaching majority. That expungement is being challenged both intellectually and politically indicates that the costs may have finally become too much to bear.