III. Unequal and Racially Disproportionate Crime Control Efforts and Enforcement of “Felon in Possession” Laws
A. Those Previously Convicted of a Felony are Disproportionately Black
The “felon in possession” statute only applies to those previously convicted of a felony in any domestic court. On its face, this law is clearly race-neutral. However, when analyzing the rates at which Blacks are arrested, prosecuted, and convicted of felony offenses, in comparison to those of whites, it is apparent that this law disparately affects Black populations.
The United States has the highest per capita prison population in the world. Black males are overrepresented in the prison population, which is disproportionate to the percentage of Blacks in the general population. To clarify, prisons, rather than jails, are typically facilities in which persons convicted of felonies spend their term of incarceration. Since 1850, when the first prison statistics were published, it has been evident that Blacks are overrepresented in state and federal prisons. Despite the low general national population, “the combined percentage of ... [B]lacks and other minority groups incarcerated by the criminal justice system has ranged between 40% and 50% of all inmates present.” For example, in 1923, not long before the federal “felon in possession” law was enacted, people who are Black made up only 10% of the national population, but 31% of the national prison population; this same year, whites made up nearly 90% of the general population, but only 68% of the national prison population.
Over the years, the Black prison population has steadily increased at a faster rate than their proportion of the general population, while the white prison population has decreased more in line with their slow decrease in the general population. The Black prison population had risen from 31% in 1923 to 34% by 1950, while Blacks as a portion of the general population remained around 10%; over the same period, the white prison population decreased from 68% to 65% while white people remained at about 90% of the general prison population. Ten years later, by 1960, the Black prison population had risen, yet again, to 37%, while their representation of the general population only rose to 10.5%. In that decade, the white prison population decreased to 61%, but the general white population decreased by a little over one percent to 88.6%. With the rising levels of incarcerated Blacks in the 1960s, the federal government passed the Gun Control Act of 1968--a harsher “felon in possession” law compared to its predecessor--the Federal Firearms Act of 1938.
This disproportionate rate of incarceration of Blacks has continued in the last half century and continues today. In 2015, approximately 13.3% of the national population was Black, but the national state prison population consisted of 38% Black male inmates. The federal prison population of Black inmates was nearly the same at 37.8%. In the same year, white males made up approximately 77% of the national population, and the national white population in state prisons was less than that of the national Black population in state prisons at 35%. The federal prison population of white inmates was slightly higher at 58.7%. Overall, it is estimated that Blacks are five times more likely than whites to be incarcerated in a prison at some point in their lives.
Imprisonment rates for drug charges are even more imbalanced. In 2003, for example, Blacks comprised approximately 12% of the national population, and 14% of drug users and sellers, as reported on national household surveys. In the same year, 34% of those arrested for drug offenses were Black, and 45% of the national state prison population serving a period of incarceration for a drug offense were Black. As such, Black men were about twelve times more likely to serve a period of imprisonment for a felony drug offense than white men. Clearly, Blacks--and Black men in particular--are much more likely to have been convicted of a felony than whites.
B. Federally Endorsed Disparate Treatment of Black Communities
The pre-existing disproportionate numbers of Blacks who have been convicted of a felony translates into similarly disproportionate numbers of Blacks who are convicted under the federal “felon in possession” law. For example, in fiscal year 2015, 51% of all persons convicted under the law were Black, while only 26.1% were white. However, the disproportionate rates at which Blacks are convicted of felonies--and thus susceptible to a “felon in possession” charge--are only a small component of why Blacks are disparately affected by federal “felon in possession” laws.
Federal programs have existed for twenty-six years to ensure the most aggressive enforcement of gun laws and have been set up to systemically target Black communities. All states have their own penal law similar to the federal “felon in possession” statute. In 1991, the Attorney General of the Bush Sr. Administration announced “Project Triggerlock.” Under this program, the U.S. Attorneys' offices allocated additional resources to prosecute gun offenses with local law enforcement agencies. The program primarily focused on the enforcement of the federal “felon in possession” law. The program was implemented in just several jurisdictions within the country. The Criminal Division of the U.S. Department of Justice directed the U.S. Attorney from each district to create a task force between federal, state, and local representatives to establish and develop an enforcement strategy.
The U.S. Attorneys' offices collaborated with local police departments to prosecute offenders brought in by police officers in federal court, where the offenders “would face ‘the full force of federal sentences with a commitment to no plea bargaining.”’ The intended goal was to “protect the public by putting the most dangerous offenders in prison for as long as the law allows.” Indeed, federal sentences for gun offenses, such as 18 U.S.C. § 922(g)(1) or the “felon in possession” statute, are more severe, resulting in terms of incarceration far longer than their state counterparts. Within the first six months of project Triggerlock's announcement, over 2,600 defendants were charged under the federal “felon in possession” law nationwide.
Based on the concept and perceived successes of Project Triggerlock, the U.S. Attorney of the Eastern District of Virginia began its own sub-project, Project Exile, in 1997. The U.S. Attorney was determined to prosecute “all felons with guns,” so that these offenders would be held without bail under federal bond statutes, subjected to lengthier incarceration terms under federal law, and “‘exiled’ to federal prison,” rather than be able to serve time closer to their communities. Similar to Project Triggerlock, local police departments in the Eastern District of Virginia would review the firearm possession crimes and determine whether the conduct violated a federal crime, mainly the “felon in possession” statute and the statute that criminalizes the possession of a firearm during a crime of violence or drug trafficking. If the conduct allegedly violated federal law, the police department would refer the case to the United States Attorney for the Eastern District of Virginia. Essentially, a state police officer was initially responsible for informing federal prosecutorial officials, and then the case would be diverted from state to federal court, subject to the United States Attorney's review and discretion. After two years of the project's implementation, the district had obtained 302 “felon in possession” convictions. Additionally, the average incarceration sentences were over fifty-three months, or at least four and a half years.
Project Exile's extreme racial disparities in federal prosecution was clearly discussed in United States v. Jones by a three-judge panel of the Eastern District of Virginia court. In 1998, Chad Ramon Jones, a Black resident of Richmond, Virginia, was charged in state court for violating several state criminal laws. However, Mr. Jones's case was transferred to federal court as a result of Project Exile. Mr. Jones moved to dismiss the indictment based on the argument, inter alia, that Project Exile resulted in selective federal prosecution based on race and thus violated his due process rights under the Fifth Amendment of the U.S. Constitution. “Constrained by equal protection and selective prosecution case law,” the court ultimately denied Mr. Jones' motion to dismiss. The court nevertheless “t[ook] th[e] opportunity to express ... concern about the discretion afforded individuals who divert cases from state to federal court for prosecution under Project Exile.” The court stated, “[t]he inability of the prosecutors to explain the procedure clearly is disquieting and casts some doubt on the assertion that race places no role in deciding whether a particular case is to be federally prosecuted.” Moreover, the court explained the resulting racial disparities of federal prosecution:
Prosecutors have implemented Project Exile in Richmond and Norfolk .... [T]he population of each [city] is substantially African-American. In these areas, federal firearms statutes are aggressively enforced. The same statutes, however, are rarely enforced in more rural areas of the [same district]. This geographic variance means that defendants charged with firearms offenses in outlying areas of the [district], who are more likely to be Caucasian, evade federal prosecution ... [for] identical conduct. Additionally, the record is that approximately ninety percent of the Project Exile defendants are African-American. Accordingly, there is little doubt that Project Exile has a disparate impact on African-American defendants.
Although the court found that there was a disparate impact on Black defendants, it stated that it was “unwilling to ascribe an unconstitutional intent to those responsible for Project Exile absent clear evidence of a racially discriminatory intent.”
Despite the justices' unambiguous concerns regarding Project Exile, the project continued, and was supported by both Democrats and Republicans. In 1999, the same year that United States v. Jones was decided, the National Rifle Association (“NRA”) contributed $125,000 to advertise for Project Exile and the NRA's President applauded the federal prosecutors during hearings on the project. NRA opponents and gun control advocates also supported the project. Between 1991 and 2001, while Project Triggerlock and Project Exile were enforced, federal prosecutions under the “felon in possession” law doubled. The projects were deemed successes and were the “footprint” for today's national program, “Project Safe Neighborhoods.”
Project Safe Neighborhoods started in May 2001 under the Bush Jr. Administration. The Administration allocated more than $900 million for the first three years of the program, primarily to hire additional Assistant U.S. Attorneys and ATF agents (agents of the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives). The national federal firearm prosecutions increased by approximately 73% from 2000 to 2005.
Project Safe Neighborhoods, much like Project Exile, as determined in United States v. Jones, targets Black communities and disparately impacts Black defendants. This disparate impact is evidenced by two practices: the targeted implementation of this project in certain jurisdictional districts, and the federal prosecutors' imbalanced exercise of their discretion to remove cases from state court and to indict under the might of federal law. First, the districts in which this project is implemented are disproportionately Black. More than half of the national Black population lives in thirty metropolitan areas. Project Safe Neighborhoods targets every single one of these thirty metropolitan areas, which have the largest Black populations of all metropolitan areas. Moreover, of the fifty-four cities with populations exceeding 100,000--where African Americans make up 30% or more of the population--Project Safe Neighborhoods focuses on at least forty-four of those communities. Of these metropolitan areas, people who are Black make up 30% or more of the population, but make up less than 14% of the national population.
Second, defendants whose cases are removed from state court are disproportionately Black as well. For example, in the Eastern District of Michigan, nearly 90% of defendants prosecuted under federal law through Project Safe Neighborhoods are Black. Over 80% of defendants prosecuted under federal law through Project Safe Neighborhoods in the Southern District of New York are Black. Under Cincinnati's Project Safe Neighborhood's initiative, over 90% of all defendants are Black. Despite numerous cases in many of these targeted districts, in which defendants raise arguments of selective prosecution resulting from Project Safe Neighborhoods, these defendants do not see relief. The nationwide pursuit to prosecute these offenses under the clout of federal law continues, and the harsh sentences are imposed, as the Project guarantees.
