Boston University Law Review
57 (1977): 96
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
a back issue.
"AND NOBODY CAN GET
YOU OUT"
THE IMPACT OF A MANDATORY PRISON SENTENCE FOR THE ILLEGAL CARRYING OF A FIREARM
ON THE USE OF FIREARMS AND ON THE ADMINISTRATION OF CRIMINAL JUSTICE IN BOSTON-PART I
JAMES A. BEHA, II *
TABLE OF CONTENTS¾PART I
I. INTRODUCTION ................................................................................... 98
II. MASSACHUSETTS GUN LEGISLATION AND THE
INTRODUCTION OF BARTLEY-FOX ...................................................101
A. Massachusetts Regulation of the Ownership,
Possession and Carrying of Firearms .............................................101
1. The Statutory Scheme ........................................................101
[Page 97]
2. The Offense of Illegally Carrying a Firearm......................104
B. The Implementation of Bartley-Fox and
Its Constitutional Challenge ............................................................106
III. THE COURT STUDY: DATA COLLECTION AND ANALYSIS ...111
IV. THE COURT STUDY: FINDINGS AND INTERPRETATIONS .....115
A. The Relationship Between Firearms Charges and the
Prosecution of Gun-Related Crime ..................................................115
B. The Court System's Response to Bartley-Fox ..............................119
V. CONCLUSION TO PART ONE ...........................................................145
Part II, to appear in the next issue, will address the following: http://www.saf.org/LawReviews/Beha1b.html
I. THE IMPACT OF THE LAW ON THE POSSESSION AND
CARRYING OF FIREARMS
A. Introductory Notes
B. Available Indicators of the Impact of Bartley-Fox on
Compliance, Circulation, Availability and Intervention
1. Compliance with Existing Permit and License Requirements
2. Reduction in the Number of Firearms in General Circulation
3. Reduction in Firearms Directly Available for Criminal Activity
4. Bartley-Fox and the Exercise of Discretion by Police:
Possible Changes in Strategies of Intervention
II. BARTLEY-FOX AND FIREARM CRIME
A. The Immediate Context: Levels of Crime in Boston
B. Recent Trends in Firearm Crime
C. Concluding Notes on the Impact of Bartley-Fox
III. SUMMARY AND IMPLICATIONS
A. Summary
1.Strengths and Weaknesses of the Statute as Drafted
2.Enforcement of the Law
[Page 98]
3. Impact of the Law Outside the Criminal justice System
4. The Limits of This Study
B. Suggestions for Additional Research on Bartley-Fox
C. Some Broader Implications of This Research
1. Deterrence Research
2. Mandatory Sentencing Proposals
3. Gun Control Strategies
I. INTRODUCTION
In July 1974, Massachusetts adopted an amendment to a long-standing law prohibiting the carrying of firearms
by individuals lacking the appropriate permit.[1] In addition to strengthening that law's criminal penalties, the
"Bartley-Fox" amendment¾after sponsors David Bartley, then Speaker
of the Massachusetts House, and retired judge J. John Fox¾introduced a mandatory
minimum sentence for every defendant convicted under this law. Unlike many other "mandatory" sentencing
laws, Bartley-Fox explicitly prohibited the courts from interposing informal dispositions that might short-circuit
the imposition of the new penalty by requiring that the minimum sentence of one year in prison be imposed and served
without suspension, parole, or furlough. The Bartley-Fox law took effect on April 1, 1975, following an intensive
publicity campaign which emphasized that punishment under this law would be swift and certain, that once caught
nobody can get you out."
Although the law drew only a moderate amount of public comment when first passed by the legislature, it has
since attracted a great deal of local and national attention. The law simultaneously presents an experiment in
mandatory sentencing and the application of one strategy for reducing firearm abuse without outlawing¾or
even licensing¾firearms themselves. Assessing Bartley-Fox's impact has become
a regular port of call in debates on both topics.
When the mandatory sentence took effect, the Harvard Center for Criminal justice started a short-term study
of the response of the criminal justice system to the illegal carrying of firearms and to the use of firearms in
crime.[2] This study increasingly focused on Bartley-Fox and, particularly, on the question of how the mandatory
sentence would affect the exercise of [Page 99] discretion by police, prosecutors and the courts. We also felt
compelled by the national interest in this new law to develop what information we could about Its impact both upon
the illegal carrying of firearms and upon the use of firearms in the commission of violent crime. This two-part
article presents what we have been able to learn over the past eighteen months about these topics.
The study was grounded upon three different sets of "samples" of information about this law. First,
we drew together those 1975 statistics that might reflect the law's impact on the illegal carrying or possession
of firearms. These included arrest summaries; ballistics unit records; statistics from the Department of Public
Safety on the issuance of various firearm permits; survey data; and the results of interviews with attorneys, criminal
justice officials and offenders. Second, in trying to estimate the impact of the law on the use of firearms in
violent crime, we worked intensively with the Boston Police Department's monthly incident reports covering three
years before as well as two full years after the law's effective date of April. 1, 1975, and with comparable state
and national data to the limited degree available. And third, in our effort to understand the response of the criminal
justice system to the law, we followed through December 1976 all prosecutions for a firearm crime that entered
the Boston lower court system between April and September 1975, including 203 cases that involved a Bartley-Fox
charge,[3] as well as a parallel sample of cases brought during the same six months in 1974¾and,
therefore, before the law took effect.[4] In combining these various sources, the study continued to work toward
two significantly different aims: (1) to describe the response of the criminal justice system to the introduction
- of a mandatory minimum penalty¾an institutional
analysis¾and (2) to estimate any effect the law may have had on compliance with
the licensing law, on the carrying of firearms and on the use of firearms in the commission of violent crime¾an impact analysis. Part One of this article addresses the first of these topics;
the second topic, and our more general conclusions, will be included in Part Two.
Our study concentrated almost entirely on the city of Boston. The conclusions drawn, therefore, may not be a
completely accurate representa- [Page 100] tion of the state's experience with Bartley-Fox. Nonetheless, more than
half of the Bartley-Fox cases brought during the first six months the law was in effect were brought in the Boston
courts. And the most serious violent crime in Massachusetts is disproportionately concentrated in Boston, the state's
largest city.[5] Thus, conclusions drawn from the Boston experience do represent the results at the single
most important test site for a new law addressed to predatory violent crime.
It is worth pointing out, however, that there is no guarantee that even the limited set of effects the law has
had so far in Boston would be repeated wherever a similar statute is enacted. Massachusetts and the city of Boston
have historically had low levels of firearm ownership, as well as low rates of firearm use in crime. Massachusetts'
version of the trial de novo system,[6] moreover, creates a highly unusual set of pressures and opportunities for
prosecutors, defendants and judges. For example, lower court judges may come to believe that superior court juries
will take them off the hook if they hold over a sympathetic defendant. Defendants, on the other hand, have an opportunity
to hear the bulk of the prosecution's case in the lower court, allowing them an unusually informed choice as to
whether they should take a certain line of defense, seek a plea bargain, or¾and
this appears to happen in quite a few cases¾take advantage of a second opportunity
to default and flee. This is not to say that the knowledge gained from this study must be restricted to Massachusetts'
particular circumstances, but rather that, in considering the enactment of mandatory sentencing statutes, legislators
must consider the character of the offense being punished, the circumstances of individuals likely to commit that
offense, and the context within which apprehension, prosecution and sentencing must occur.
The overarching constraints on the interpretation of this study are themselves products of the short time period
within which our research effort was conducted. Many of the cases that we began to follow in the fall of 1975¾including some initiated as early as April 1974¾are
still awaiting final resolution in the Suffolk Superior Court. Several of the measures of impact that we have considered
are sufficiently volatile that the significance of patterns observed during the first year or two will not be definitively
settled without several years' additional data. Conversely, effects that were present during this initial period
may not be repeated as public awareness of the law dissipates, or as the threat that "nobody can get you out"
appears to lose credibility. [Page 101]
With these caveats in mind, section 11 sets the stage for the study by describing the Massachusetts system for
regulating firearms, the character of the change in that system introduced by the Bartley-Fox amendment, and the
factors involved in demonstrating that a defendant has violated the statute. That section also describes the process
of implementing Bartley-Fox and the Supreme Judicial Court's decision sustaining the constitutionality of the mandatory
minimum sentence. Section III presents the context and outlines the purposes of our study of gun-related prosecutions
brought in the Boston courts and describes the manner in which we selected our court samples and the sources used
in developing the case histories. Section IV, the final section of Part One, draws on the court study to develop
answers to a series of questions about the law and the criminal justice system. First, we discuss the extent to
which Bartley-Fox contributes to the prosecution of violent crime; then we explore the law's effect upon the ways
in which criminal justice officials¾police, prosecutors and judges¾carry
out their functions, with close attention to evaluating any evidence that such officials have systematically attempted
to evade the mandatory sentence.
The second part of this article, to be published in the next issue, will examine the impact of Bartley-Fox upon
citizen compliance with licensing laws, the general level of firearms in circulation, the casual availability of
firearms for criminal activity, and crime rates. The next installment will also examine in somewhat greater depth
the implications of, and limitations upon, this study and will suggest additional topics that might be studied
in the future.
II. MASSACHUSETTS GUN LEGISLATION AND THE INTRODUCTION OF BARTLEY-FOX
A. Massachusetts' Regulation of the Ownership, Possession and Carrying of Firearms[7]
1. The Statutory Scheme
Statutes requiring individuals to¾obtain some form of permit to carry a firearm
have been in effect in Massachusetts since 1906, when carrying a loaded pistol or revolver without a license was
first prohibited.[8] In 1968, the [Page 102] permit requirement was extended to ownership or possession of any
gun. In their present form, the laws concerned with the ownership, possession and carrying of Firearms constitute
a two-tiered system of identification and licensing. Most citizens may obtain a "firearm identification (FID)
card" as a matter of right;[9] this card authorizes the holder to own or possess a handgun and to own, possess
and carry a long gun. In order to carry a handgun,[10] however, the citizen must obtain a separate license,
which is to be issued by the local authority only upon a finding that the applicant is a "suitable person"
and that-he has "good reason to fear injury," or has "any other proper purpose."[11] Finally,
for a citizen to purchase a handgun, he must have either a license to carry, or a special permit[12] and
an FID card.[13] It is this " point of purchase" restraint, introduced in 1926, that has distinguished
the Massachusetts system of regulating handguns from that of most other states.[14]
Prior to the passage of Bartley-Fox, the penalty system had distinguished only between the improper ownership
or possession of any firearm and the improper carrying of a handgun. 'The former offense was punished by a maximum
sentence of one year's imprisonment or a $500 fine[15]¾first set when the FID
card requirement was introduced in 1968. The penalty for unlawfully carrying a handgun, which paralleled
the penalty for carrying certain other dangerous weapons, was a sentence ranging from not less than six months
in a jail or house of correction to not more than five years in the state prison. However, the statute also provided
that, "if the court finds that the defendant has not been previously convicted of a felony, he may be punished
by a fine of not more than fifty dollars or by imprisonment for not more than two and one half years in a jail
or house of correction."[16]
Additionally, after 1968, repeat offenders under these provisions were subject to more severe penalties,
and the law provided that their sentences" shall not be suspended nor shall any person so sentenced be eligible
for [Page 103] parole or receive any deductions from his sentence for good conduct."[17] Thus, the penalty
structure for carrying offenses long had something of a mandatory flavor¾although
courts might still suspend such sentences (except in the case of those found to be repeat offenders), place the
case "on file," or continue the case "without a finding."
The Bartley-Fox amendment did not alter the penalties for improper ownership or possession of a firearm; it
did, however, change the handling of the carrying offense in a number of respects. First, the provisions for firearms
were separated from the provisions for other dangerous weapons. Second, the minimum sentence for illegally carrying
a firearm was increased from six months to one year.[18] Third, the amendment extended the carrying offense category
to encompass the carrying of a long gun without having an FID card-a particularly sharp shift in the law since
the carrying of a long gun had not previously been distinguished from its mere possession, for which the maximum
penalty was one year.[19] Finally, the Bartley-Fox bill also provided that, for all those charged under the
statute,
[t]he sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall
any person convicted under this subsection (a) be eligible for probation, parole, or furlough or receive
any reduction from his sentence for good conduct until he shall have served one year of such sentence. Prosecutions
commenced under this section shall neither be continued without a finding nor placed on file.[20]
In this manner, the drafters of the law attempted to ensure that this minimum sentence would be imposed upon,
and served by, all defendants whose cases did not result in dismissals or acquittals. It is the last sentence of
the provision that, by closing off routes of informal disposition, makes this law different from most statutes
"mandating" particular penalties.[21]
Despite much publicity to the contrary, the amended statute does not formally prohibit plea bargaining of a
carrying charge; thus, a defendant's plea to some other charge might still be coupled with dismissal of the carrying
complaint.[22] Furthermore, in contrast to repeated arguments by sponsors of Bartley-Fox, the law does not preclude
the dismissal of cases or a prosecutor's motion to dismiss. Many prosecutors, however, appear to have accepted
the sponsors' position as fact. [Page 104]
The scope of the law is further limited by the fact that, although the law's sponsors emphasized its importance
as a message to juvenile offenders, by its terms it does not intrude upon the juvenile courts and the juvenile
justice process.[23] Only if the juvenile court judge concludes that the offender should be tried as an adult¾an infrequent decision, especially when a major crime of violence is not alleged¾does the mandatory sentence come into play.[24]
2. The Offense of Illegally Carrying a Firearm
Having outlined the statutory scheme for regulating firearms, it is important to look closely at the offense
of illegally carrying a firearm¾what it involves and what kinds of gun-connected
behavior are not covered by the amended law. In order to establish that a defendant has violated the statute, the
prosecution must prove a series of points about the weapon, the defendant's behavior and the defendant's circumstances.
It turns out that these may sometimes be difficult or impossible to establish, even though the defendant clearly
did participate in an incident involving what the victim or the arresting officer had reason to believe was a gun.
Massachusetts law defines a firearm as "a pistol,, revolver, or other weapon of any description loaded
or unloaded, from which a shot or bullet can be discharged and of which the length of barrel is less than sixteen
inches or eighteen inches in the case of a shotgun."[25] The courts have consistently read this definition
as requiring clear evidence that the weapon involved actually is capable, at least after minor adjustment, of firing
shots or bullets.[26]
The result of the firing capacity test has been that a conviction under these statutes almost invariably requires
introducing the weapon into evidence. Indeed, clerks in the courts we studied will not issue a complaint unless
the weapon has been seized by the police or some unusual circumstance is present, such as an admission by the defendant
or evidence of firing. Even when the weapon has been seized and a complaint has issued, a ballistics examination
may subsequently establish that the weapon does not in fact meet the statutory requirement. This does not mean,
however, that a ballistics report or expert testimony is absolutely essential for conviction; although the absence
of such evidence severely undermines the prosecution's case as a matter of law, the jury may draw inferences from
observing the weapon.[27] [Page 105]
The law's mandatory penalties only apply to an individual who, without authorization, "carries on his person,
or carries on his person or under his control in a vehicle," a handgun, rifle, or shotgun.[28] Such a carrying
occurs only beyond the confines of an individual's home or place of business and must involve something more than
the momentary handling or use of a weapon. For example, the Supreme judicial Court of Massachusetts has held that
"the temporary possession of the revolver [while playing Russian roulette] is not a carrying of a firearm
on the person within the meaning of G, L. ch. 269, § 10, as amended. The idea conveyed by the statute is that
of movement . . . ."[29] But, even though mere possession is not sufficient to establish the carrying of a
weapon, possession is nonetheless essential. Thus, in an armed robbery in which one defendant holds a gun while
the other takes the valuables, only the individual with the weapon is chargeable with a firearms violation, although
both have committed an armed robbery.
In Commonwealth v. Boone,[30] the SJC predicated the possibility of "control" on a requirement
that the defendant had known about the weapon's presence. The court stated that "it would not be a reasonable
interpretation that a weapon is within the control of someone who does not know that he has it."[31] Subsequently,
the court broadened the scope of the knowledge requirement by interpreting "§ 10(a) as requiring, as
a necessary element of the offense, proof that the accused knew that he was carrying a firearm."[32] As presently
interpreted, though, there is no requirement that the offender know about the licensing law.[33]
Proving that a weapon was under the control of the defendant in a vehicle likewise involves several steps. The
finder of fact must be able to infer that the defendant knew about the weapon.[34] However, merely placing a defendant
with such knowledge in a car with the weapon does not adequately link the defendant to the weapon. Although it
is possible that several occupants of a car all had control over weapons therein,[35] it will often be the case
that knowledge and control will be provable only for some¾and occasionally for
none¾of the occupants.[36] [Page 106]
Handguns, rifles, shotguns and machine guns may be carried by those who do have the proper authorization. There
are also a series of exemptions in the statute for, e.g., new residents, duly authorized law enforcement
personnel and historical societies.[37] The defendant has the burden of establishing either the existence of authorization[38]
or that he is covered by an exemption.
B. The Implementation of Bartley-Fox and Its Constitutional Challenge[39]
The structure of the Bartley-Fox amendment grew out of the belief of retired judge J. John Fox that no person
could have a legitimate reason for carrying a firearm away from his home or place of business if that person had
failed to obtain in advance the proper authorization for such carrying. Fox explicitly assumed that people who
can and do obtain licenses-whom he calls the "white hats"-are not the people who commit gun-related crimes.
Conversely, Fox felt that those individuals who are more likely to commit such crimes¾the
"black hats"¾or those persons who, while not planning a crime, are
susceptible to gun use¾the "brown hats"¾would
be deterred from casual carrying of firearms in the face of a stiffer penalty for unauthorized carrying and that
this would result in a reduction in street crime.[40]
Judge Fox reports that he had lobbied for such penalties for many years but did not approach then-Speaker of
the House David Bartley with his ideas until the spring of 1974. Bartley reports that he found Fox's "legitimate
purpose" argument convincing and that they both agreed that more expansive legislative attacks on the gun¾crime problem, such as a complete ban on handguns, were not politically feasible.[41]
Bartley's research staff set to work drafting a statute to incorporate these ideas.[42] The resulting bill was
[Page 107] introduced in the House on June 3, 1974, by Speaker Bartley. The bill was reviewed by the Committee
on Public Safety, and a revised version was favorably reported out to the House, which "engrossed" the
bill without debate ten days after its introduction.[43] The bill was subsequently read in the Senate and engrossed
there after some debate. The House enacted the law on July 1, 1974, and the Senate followed suit. After some procedural
wrangling between Governor Francis Sargent and the legislature, the Governor signed the bill on July 30, 1974.[44]
Some observers have argued that the bill's speedy initial passage resulted from the desire of some legislators
to stymie more expansive gun control legislation. This is doubtless an accurate assessment of the motives of some
[Page 108] members of the General Court, but most legislators and lobbyists thought that legislative passage of
more expansive gun control measures was unlikely in any case. The critical factor in the passage of Bartley-Fox
seems to have been the support of the Speaker; his sponsorship brought passage so rapidly that those who might
have opposed the legislation as insufficient, or as creating undesirable zones of discretion for criminal justice
officials, were never mobilized. Indeed, one member of the legislature's Black Caucus indicated after that group
had opposed the law at the reenactment stage that they would have vigorously opposed the law at the point of its
initial enactment had it not been pushed through the General Court before adequate reflection was possible.[45]
Also, those individuals who normally oppose gun control measures would have been hard pressed to attack a law that
addressed only the carrying and not the ownership of firearms, did not require the registering of guns, and punished
"gun crime, not gun owners." In fact, several local gun-owner groups became involved in the drafting
of the legislation.
Because Bartley-Fox was intended to alter radically the treatment of those found illegally carrying a firearm,
the law's sponsors considered it essential to conduct an intensive effort to inform and educate the public about
the penalty and about the credentials required in order to carry- a firearm legally. In fact, the effective date
of the law was postponed so that such an effort could be made.[46] The extensive advertising campaign, launched
in early 1975, consisted of both an "in-house" effort by the Speaker's office to generate media interest
in reporting on the law, and an outside effort by the Advertising Club of Greater Boston to solicit free space
or time for public service announcements.[47] [Page 109]
In general, the initial radio and television publicity spots gave an accurate description of the law. However,
almost all the printed information contained the inaccurate statement that the mandatory sentence covered the possession
as well as the carrying of firearms. This is hardly surprising since the pamphlet describing the law, prepared
by judge Fox and the Speaker's staff, itself asserted that "[t]he new gun law imposes a MANDATORY JAIL SENTENCE
FOR THE UNAUTHORIZED POSSESSION OR CARRYING OF A FIREARM (HANDGUN), RIFLE OR SHOTGUN." Newspaper articles,
which were inevitably based on the press kit, usually perpetuated the pamphlet's error and often added further
inaccuracies.[48]
The Bartley-Fox amendment's mandatory jail sentence survived attack on both federal and state constitutional
grounds in the companion cases of Commonwealth v. Jackson[49] and Commonwealth v. McQuoid,[50] decided
by the Supreme judicial Court on March 15, 1976. In Jackson, the defendant argued that the mandatory sentence
constituted cruel and unusual punishment under both the state and federal constitutions because: (1) it prevented
a court from relating the punishment imposed to the harm done to society and from taking into account the background
of the defendant; (2) no other public welfare offense[51] carried a mandatory penalty; and (3) the penalty seemed
excessive when compared to penalties for more serious offenses in Massachusetts, for similar offenses in Massachusetts
and for parallel offenses in other jurisdictions.[52] The SJC noted, however, that the legislature must be free
to experiment with ways of preventing crime, including statutes that prevent the gradation of punishment. The court
concluded that, in light of the rational inferences the legislature could draw about the connection between guns
and crime, the one-year mandatory minimum was not "so disproportionate to the magnitude of the crime as to
render the statute [Page 110] unconstitutional.[53] And the court found that the disparity between this sentence
and corresponding measures in other states was not so great as to demonstrate an unconstitutional exercise of legislative
power.[54]
The court also rejected the defendant's due process arguments, holding that however unwise the statute might
appear, it still met the "rational relationship" test[55] because the legislature may reasonably determine
that an inflexible rule is necessary to reduce the danger created by the unlicensed carrying of a firearm.[56]
Similarly, the court held in McQuoid that the equal protection clause was not offended by singling out this
offense, for the legislature, "in confronting a multitude of evils . . . . may address itself to the phase
of the problem most urgently requiring remedial action."[57]
Finally, Jackson argued that the statute violated the separation of powers arrangement set forth in article
30 of the Declaration of Rights of the Massachusetts Constitution.[58] He contended that the practices of granting
probation, filing cases and continuing cases without a finding were inherent judicial functions, which had existed
at common law, and were therefore insulated by article 30 from legislative revision or abrogation.[59] The court
responded that inherent judicial powers include only those that relate to the capacity of the judiciary to function
and that the ability to defer the imposition of sentence "is not necessary to the very existence of a court,
and, [Page 111] as such, is not an inherent power beyond statutory limitation."[60] The court reasoned that
to read suspension, probation, continuance and filing as inherent judicial powers would, in effect, deny the legislature
its power to define crimes and prescribe penalties, in violation of the principle of separation of powers.
III. THE COURT STUDY: DATA COLLECTION AND ANALYSIS
A major concern of those individuals assessing Bartley-Fox's likely impact upon crime and the criminal justice
system was the daily application of the law by police, prosecutors and judges. However sharp the teeth of the amended
law, they could be blunted by evasion within the police and court systems. But without accurate information about
prior police and court practice,[61] critics were at a loss to interpret the implications of the law; lacking objective
reports on a substantial sample of cases brought under the new law, their commentary had to be limited to visceral
reactions, fragmentary and perhaps misleading statistics, and anecdotes.
The Center's study began by recognizing the gaps in knowledge about earlier experience with the carrying and
licensing provisions and the need for careful documentation of the handling of Bartley-Fox cases. Although information
on some of these points could be developed in a variety of ways, we concluded that the best solution to these concerns
would be a study of firearm violation prosecutions commenced both before and after the law took effect and, more
broadly, a study of the relationship between prosecutions for firearm violations and those for gun-related crimes.[62]
The resulting study was primarily based upon data collected in the Boston courts¾the
eight lower courts and the Suffolk Superior Court.[63] The [Page 112] primary sources of data were two six-month
samples drawn for both 1974 and 1975 from the docket books of the Boston district courts and cross-checked
against Boston Police Department arrest records for completeness.[64] Dockets were examined for the period between
April 1 and October 31 of each year, and all complaints relating to the illegal use, possession, or carrying of
a firearm¾based on incidents occurring between April I and September 30¾were collected for the sample. Thus, all robberies, assaults, rapes and homicides
that allegedly involved a firearm are in the sample;[65] other crimes, such as drug offenses, are not included
unless a complaint for a firearms violation was also brought. In addition, the sample does not include any cases
that may have been originally filed in Suffolk Superior [Page 113] Court[66] juvenile offenses,[67] or cases in
which initial arrest warrants were still outstanding at final file review.[68] In sum, the 1975 sample encompassed
some 467 cases, compared with 615 cases in the 1974 sample.
Although the court records are adequate for identifying charges, dispositions and penalties, they lack the detail
and reliability necessary for complete analysis.[69] Thus, four supplemental data sources were utilized to double
check and fill in the gaps in the basic files.
(1) Police incident and arrest reports. The Boston Police Department central files provided some narrative
description of the incident and the suspect, the name of the arresting officer and a description of any firearms
seized. Some record existed for all but eleven cases in our 1975 sample.[70] These files were also used to obtain
supplemental information on selected 1974 cases.
(2) Probation interview records. Because the criminal and social background of those arrested for firearm
violations was a relevant variable in assessing the use of police and judicial discretion, we attempted, with the
permission of the Commissioner of Probation,[71] to examine each court's probation workups on 1974 and 1975 sample
defendants charged with illegally carrying or possessing a firearm. The presiding judges in five courts that handle
the bulk of these cases¾Boston Municipal, Roxbury, Dorchester, West Roxbury and
South Boston, with 213 of the 244 firearm violations in the 1975 sample¾agreed
to cooperate. The backgrounds of subsamples of [Page 114] 1974 defendants and the full sample of 1975 firearm violation
defendants were studied through probation records at the cooperating courts.
(3) Attorney follow-up. A critical question about the new law was the extent to which judges¾and,
in superior court, juries¾would release a defendant who would otherwise have
been convicted in order to avoid sentencing that person to a year in prison. We therefore attempted to contact
the attorney of record for each defendant in our 1975 sample who was charged with carrying a firearm and
released by the court. In the district courts, we were able to identify an attorney in fifty-one cases and obtained
interviews for thirty-eight cases. We were unable to obtain an interview with a located attorney in only five instances
but were unable to locate several other attorneys or their replacements on the case. We also contacted attorneys
in building our profiles of each 1975 possession prosecution and in developing other portions of our study.
(4) Arresting officer follow-up. As we went through the analysis of the 1975 cases, it became clear that
in two situations some contact with the arresting officer might provide important supplemental information: (1)
when there was no attorney to contact in a case in which supplemental information was required to explain a disposition
or why only possession and not carrying of a firearm was charged, and (2) when a defendant was charged with a gun-related
felony but not with illegally carrying a firearm, to explain why a carrying charge was not included. Through the
Boston Police Department, contacts of the first sort were made for twelve closed cases. We were unable to complete
a formal sample in response to the second question because too many 1975 gun-related cases remained open
throughout the study period, and we were firmly committed to our decision not to investigate any case prior to
its final disposition. We did, however, discuss this question with a number of police officers, court clerks and
prosecutors.
The comparative data in the samples and the more detailed supplemental information allow two different but converging
methods of analysis. In the first method, the patterns of case processing found in the 1974 and 1975 samples are
quantitatively described, with the data gathered in 1974 prior to the Bartley-Fox amendments illuminating the significance
of current practice by describing a baseline for expectations.[72] The second approach relies on the supplemental
data to measure the qualitative difference in case handling. Because the information available on each case differs¾possibly in a nonrandom fashion¾this method is used
selectively and the extent of missing data is noted where appropriate.[73] Because the criminal records and many
attorney interviews require confidentiality, no information is given in [Page 115] the analysis that might lead
to the identification of specific cases, defendants, or judges.
IV. THE COURT STUDY: FINDINGS AND INTERPRETATIONS
Our efforts to evaluate the effect of Bartley-Fox resulted in two major lines of inquiry. First, the study evaluated
the impact of a firearm violation charge on securing convictions and imprisonment for those who use a gun while
committing another crime. Second, the study analyzed the way the criminal justice system has responded to the Bartley-Fox
mandate and the attendant limitations on the discretion of the police, prosecutors and courts. Because this response
is partly a function of the role of the firearm violation charge in the prosecution of violent crime, the results
of the initial inquiry will be examined first.
A. The Relationships Between Firearms Charges and the Prosecution of Gun-Related Crime
When the 1974 and 1975 samples were completed, it was clear that the Overlap between prosecutions for firearm
violations and gun-related crimes was much smaller than anticipated. Most prosecutions for violent crimes that
allegedly involved a firearm did not include a complaint charging illegal possession or carrying of a firearm.
Similarly, the majority of prosecutions for the illegal possession or carrying of a firearm were apparently unrelated
to the commission of a violent crime. This limited overlap required an evaluation of the role of the firearm violation
in the prosecution of those individuals charged with gun-related homicides, robberies and assaults. In particular,
we were interested in how often a firearms charge was included with the central felony charge, whether it aided
in the conviction of the defendant, and whether it increased the probability of a prison sentence after conviction.
To gauge the impact of Bartley-Fox on these factors, it is necessary to summarize the 1974 sample and to compare
it with the 1975 data, collected after the amendment became effective.
Table I describes the 1974 and 1975 samples of prosecutions for gun-related crimes. In each of these prosecutions,
the defendant was charged with a crime allegedly involving a firearm. In 1974, before the passage of Bartley-Fox,
firearm violations apparently played only a minimal role in the prosecution of gun-related crime. Although used
more frequently in assault cases (3 1 % of the cases), firearm violation charges were rarely brought in robbery
(18%) or homicide (8%) cases allegedly involving a firearm. When firearms charges were brought, however, the carrying
charges predominated, being employed in 26% of the assault prosecutions, 14% of robbery cases and 4% of the prosecutions
for homicide by firearm.
Several reasons help to explain the limited use of firearms charges by police and prosecutors when bringing
complaints. First, in many cases a firearms charge may not be appropriate, either because the defendant had [Page
116]
|
TABLE I
Use of Firearm Violation Charges in the Sampled Prosecutions of
Gun-Related Violent Crime
|
| |
|
Homicide
|
Robbery
|
Assault
|
Total
|
| Total Prosecutions |
|
|
|
|
| |
1974 Sample |
27
|
114
|
216
|
357
|
| |
1975 Sample |
17
|
126
|
153
|
296
|
| |
Change in Amount |
-10
|
+12
|
-63
|
-63
|
| |
|
(-37)
|
(11)
|
(-29)
|
(-17)
|
| Carrying Charges |
|
|
|
|
| |
1974 Sample |
1
|
16
|
56
|
73
|
| |
|
(4)
|
(14)
|
(26)
|
(21)
|
| |
1975 Sample |
3
|
14
|
45
|
62
|
| |
|
(18)
|
(11)
|
(29)
|
(22)
|
| |
Change in Amount |
+2
|
-2
|
-11
|
-11
|
| |
|
(200)
|
(-13)
|
(-5)
|
(-15)
|
| |
Change in Proportional Use |
376%
|
-21%
|
+13%
|
+2%
|
| |
|
|
|
|
|
| Possession Charges |
|
|
|
|
| |
1974 Sample |
0
|
1
|
8
|
9
|
| |
|
(0)
|
(1)
|
(4)
|
(3)
|
| |
1975 Sample |
0
|
1
|
5
|
6
|
| |
|
(0)
|
(1)
|
(3)
|
(2)
|
| S.O. Shotgun Charges |
|
|
|
|
| |
1974 Sample |
1
|
4
|
4
|
9
|
| |
|
(4)
|
(4)
|
(2)
|
(3)
|
| |
1975 Sample |
1
|
3
|
4
|
8
|
| |
|
(6)
|
(2)
|
(3)
|
(3)
|
| Total, Some Firearm Violation |
|
|
|
|
| |
1974 Sample |
2
|
21
|
68
|
91
|
| |
|
(8)
|
(18)
|
(31)
|
(25)
|
| |
1975 Sample |
4
|
18
|
54
|
76
|
| |
|
(24)
|
(14)
|
(35)
|
(26)
|
| |
Change in Amount |
+2
|
-3
|
-14
|
-15
|
| |
|
(100)
|
(-14)
|
(-21)
|
(-16)
|
| |
Change in Proportional Use |
+200%
|
-22%
|
+12%
|
-9%
|
| |
|
|
|
|
|
( ) = percentage equivalent
|
the proper authorization for the firearm or, more likely, because the evidence was not sufficient to support
a complaint for a firearm violation.[74] Second, the police officer may view the firearms charge as having at best
a cumulative impact on eventual punishment while introducing complexity and confusion into the prosecution effort.
The courts already have substantial sentencing powers for serious crimes involving firearms; conviction on a firearms
charge adds little to these powers. The 1974 data confirms that any sentence for a firearm violation was of little
significance when the defendant was also convicted of the underlying gun-related crime.[75] Finally, the 1974 [Page
117] data on dispositions shows that the bringing of a firearms charge had only a limited impact upon the conviction
rate by supporting a conviction when the other charges were dismissed. In just ten lower court cases was the defendant
convicted or bound over[76] on a firearms charge¾only five of these were carrying
charges-and released on other gun-related complaints; only one of these cases resulted in a prison sentence. Thus,
in the 1974 sample, firearms charges in general and the carrying charge in particular added only marginally to
the probability of conviction and did not affect the likelihood of imprisonment.
By making a one-year prison sentence mandatory for a carrying violation, Bartley-Fox drastically changed the
penalties for firearms violations. Also, the wide publicity given, the new penalties assured that police officers,
booking supervisors and complaint clerks were well aware of the law and its advantages as a court complaint. Thus,
the 1975 sample should demonstrate the fullest application of the statute in cases in which the charging officer
thought it could have any utility¾either by increasing the probability of conviction
or by assuring a minimum sentence for conviction.
Total prosecutions in the 1975 sample period for gun-related assaults and homicides sharply declined, and prosecutions
for firearm robbery increased moderately.[77] However, the proportional role of the firearm violation charge
remained relatively stable for both assault and robbery. (The apparently large increase in the use of firearms
charges in homicide cases is based upon too few cases to be statistically reliable and is, when analyzed on a case-by-case
basis, largely illusory.) Firearm violation charges were actually used slightly less frequently in 1975
robbery cases than in 1974; since police sympathy is unlikely in robbery cases, this would seem to confirm the
1974 impression that the carrying charge is useful in fewer than one fifth (18%) of all gun-related robbery prosecutions.[78]
A look at the pattern of robbery dispositions also reveals a pattern similar to that of 1974, sharply limiting
the importance of the few accompanying carrying charges: in one case the lower court bound the defendant over on
the carrying charge while finding no probable cause on charges of armed [Page 118] robbery, and in one other case
the grand jury returned an indictment on the carrying charge and, to date, no indictments on the other gun-related
charges. The 1974 sample has indicated that, if convicted, those charged with firearm robbery do receive prison
sentences¾most often in excess of two years and to the state prison. To date
it does not appear that the addition of a Bartley-Fox charge to such prosecutions will often affect either the
disposition or the net sentence.
The use of the charge in the prosecution of assaults stands in contrast to its declining use in robbery prosecutions.
The use of firearm violation charges showed a small increase in assault prosecutions.[79] Interestingly, this increase
occurred only among cases charging just assault with a dangerous weapon; carrying charges were used 19% more frequently,
and some firearm charge 10% in lore frequently, than in 1974. Thus, prosecutions for firearm assaults not resulting
in injury¾the least serious gun-related crimes, in which one might expect to
see some evidence of "charging sympathy"¾are actually the only prosecution
sector that shows a clear increase in the use of the carrying charge.
Unlike robbery cases, assault dispositions were affected by the introduction of the mandatory minimum sentence.
The 1974 sample demonstrated that firearm assault charges often were disposed of by means of probation, suspended
sentence, or the filing of a guilty finding,[80] although the most serious assaults did receive prison sentences.[81]
Although the disposition of assault charges themselves has not shown much change, the different handling of any
accompaning carrying charge has made a significant difference in the net outcome of such cases, since the carrying
charge and its Bartley-Fox sentence increase the probability that the defendant will be brought to trial and convicted
on some charge. Assault prosecutions can be terminated by the complainant, because Massachusetts statutes specifically
allow dismissal based on "accord and satisfaction," and most, in fact, are terminated by dismissal.[82]
In 1974, when an assault charge was dismissed, many courts also dismissed the accompanying firearms charge, or
at most imposed a small penalty. In 1975, this was not the case. In prosecutions for less serious assaults in 1974,
the defendant whose assault charge was [Page 119] dismissed was also discharged on his carrying charge in, 48%
of the cases. This occurred in only 18% of such cases in 1975. A similar change occurred when firearm violations
were attached to prosecutions for more serious assaults, with outright release decreasing from 34% in 1974 to 21
% in 1975.[83]
The more serious penalties resulting from Bartley-Fox have also affected court business by increasing appeals
to the superior court and bindovers in assault cases accompanied by firearm violation charges. Only one fifth of
those convicted appealed their disposition in 1974 but nearly two thirds appealed in 1975. Similarly, bindovers
by the district courts increased 40% on carrying charges related to assault prosecutions. Thus, final dispositions
in the district court decreased from two thirds of firearms charges in 1974 to one third in 1975.
In sum, the Bartley-Fox amendment does appear to have had an impact upon the prosecution of gun-related crime
through its role in the disposition of firearm assaults.[84] However, because armed robbery and homicide already
received serious response from the police and the courts and because a firearm violation charge does not increase
the likelihood of convictions in such cases, the contribution of Bartley-Fox does not appear to have been significant
in those prosecutions.
B. The Court System's Response to Bartley-fox
Although the usefulness of Bartley-Fox in the prosecution of violent crime is one significant concern, this
study has given its closest attention to the firearm charge itself and particularly to the carrying charge to which
the mandatory sentencing provision of Bartley-Fox applies. Two thirds of these cases come to the courts outside
the context of gun-crime prosecutions. indeed, those cases that involve only firearms charges should receive the
closest scrutiny in a system-response investigation.
To analyze these cases is to focus on the way in which a system that thrives on discretion responds to attempts
to circumscribe its power. It became clear to us that many judges in the courts we studied deeply resented the
constraints imposed by Bartley-Fox upon their sentencing discretion. It is also clear that in some cases the arresting
officer felt that a one-year prison term would be a most inappropriate disposition of the violation he had observed.
These two facts have led critics of the law to predict that participants in the criminal justice system would
find ways to avoid or evade the mandatory sentence, perhaps even to the point that no real change in the processing
of firearm violation cases would occur. More specifically, the critics argued that [Page 120]
[Page 125]
and approximately 10% were summarily dismissed without costs. And, if all dismissals and continuances for dismissal
are considered explicit findings of innocence, 37% of the cases lacked sufficient evidence to convict.[93] Because
32% of the defendants facing major felony charges as well had their carrying charges dismissed at trial, or were
acquitted, in situations unlikely to arouse the sympathies of a court, this 32% figure probably does reflect an
accurate estimate for decisions of innocence on the merits.[94]
In sum, in 1974, approximately one third of all cases in the lower courts can be considered as having lacked
sufficient evidence to produce a carrying conviction. This figure roughly corresponds to the total of cases in
which the defendant was discharged by acquittal, continuance, or dismissal without any penalty or court costs being
assessed.
On the other hand, although in about 69% of the total number of carrying charges brought in district court the
evidence was probably sufficient to convict the defendant,[95] prison sentences were imposed in only 11%. Moreover,
of these twenty-six defendants who were sentenced to prison, sixteen appealed to the superior court and only four
were resentenced to prison.[96] Finally, in the seventy cases disposed of in superior court, thirty defendants
were found guilty but only fourteen were sentenced to prison.
Two other points should be noted about the 1974 data. First, the possession charge received significant use
during this period in cases in which the underlying evidence was insufficient to charge a carrying offense. Thus,
fifty-six of 319 firearm charges disposed of in 1974 were possession charges.[97] In most of these cases, the firearm
was found in the defendant's home or place of business¾often during drug searches.[98]
Second, the limited use of prison sentences in the district court resulted in a high proportion of final dispositions
at the lower court level. Only 25% of the closed cases involving any firearms charge proceeded to the superior
court [Page 126] for final trial, and only 24% of the cases involving carrying charges were appealed to the higher
court.
Four significant findings emerge from the study of the 1974 data that provide useful baselines for the
1975 data and thus for assessing the impact of Bartley-Fox. First, although firearm carrying charges
are often a part of a prosecution for a major felony, in more than half of the cases sampled the carrying
charge was the most serious offense alleged. Second, in a significant number of firearm violation cases, only simple
possession of a firearm was alleged,[99] demonstrating that a large number of firearm arrests occur in circumstances
that do not constitute the "carrying" of a firearm. Third, the lodging of a carrying charge by no means
indicates that the available evidence will support a conviction on that charge. Moreover, courts have always been
prepared to dismiss some cases and to impose only informal penalties to avoid giving the defendant a criminal record.
Fourth, defendants convicted of illegally carrying a firearm rarely received a sentence of imprisonment based on
the carrying charge. In cases brought to the Suffolk Superior Court, prison sentences were generally only applied
in connection with prosecutions for major felonies, and usually were concurrent with the major felony sentence.
Overall the court sentencing response reflected a view that the illegal carrying of firearms was a relatively serious
offense, but that, at least absent further evidence of felonious purpose, it normally did not require a response
with the weight of a prison sentence. In these circumstances, a requirement that conviction for illegally carrying
any firearm must result in a sentence of at least one year in prison could only be read as a sharp rebuke to the
courts; such a policy, if followed, would produce an acute turn in sentencing practices.
The 1975 data reflects the change caused by the Bartley-Fox amendment in the disposition of carrying
charges. In accordance with the mandate of the statute, no cases were continued for dismissal and no guilty findings
were placed on file by the district courts.[100] Thus, all cases were finally disposed. The rate of acquittal sharply
increased from 16% in 1974 to 26% in 1975. Nearly all of this increase resulted from dispositions
of cases in which the carrying charge was the only charge brought for prosecution. In those cases, the percentage
of acquittals increased from 16% in 1974 to 36% in 1975.[101] As noted above, the conviction rate on carrying charges
remained essentially unchanged when the charge was brought in conjunction with a serious gun-related crime and
actually increased when brought with assault charges.[102] Much, though not all, of the increase in acquittals
reflects a shift away from outright dismissal. The elimination of informal methods of disposition also played a
part in the increased acquittal rate; however, that [Page 127] change alone is not sufficient to explain the different
treatment accorded those defendants charged only with carrying violations.
All defendants found guilty of the carrying violation in district court were sentenced to the mandatory one
year of imprisonment. Thus, the sentencing rate by the district courts increased from 11% of the total cases sampled
in 1974 to 40% in 1975.[103] In addition, the district courts continued to bind over a significant number of defendants
(19%) to superior court without trying the case. Therefore, defendants convicted of a carrying violation were much
more likely to receive imprisonment.
This dramatic change in dispositions and penalties has caused two significant alterations in the pattern of
case flow. First, the proportion of lower court cases with outstanding defaults jumped by 38%. Although this has
significance for the analysis of dispositions¾given that it is reasonable to
argue that the vast majority of those defaulting would have been convicted¾the
change is visible only in cases with multiple felony charges; there was no change at all in the default rate for
cases in which the carrying charge was the central concern. With many cases still pending, it is impossible to
peg the final default rate, but when figures from the superior court are added in, it is apparent that defaults
have become significantly more frequent since the introduction of Bartley-Fox. In 1974, 17% of the cases in which
the carrying complaint was the most important charge went uncompleted, whereas the default rate for similar 1975
cases is, at this point, 23%.
The increase in defaults in these cases highlights the interactive effect of the two tiers of the Massachusetts
court system. In practice the default rate did not change for either the lower or the superior court.
Rather, the flow of cases to the superior court increased dramatically (as shown below), thus increasing the number
of defaults at the superior court level without increasing the rate. The new law thus operated to "exclude
the middle" (the cases which were previously settled by the imposition of a minor penalty at the lower court
level) and to increase the overall rate of defaults, a unique result possible only under a trial de novo
system.
Second, nearly all convicted defendants exercised their right to a superior court trial de novo.[104] The change
in the appeal rate is hardly surprising given the drastic impact of the one-year minimum sentence; in 1974, after
all, only one quarter of the convicted defendants received any prison term at all from the lower court, and most
defendants who did receive such a sentence appealed. This change contains an important lesson about the imposition
of a mandatory penalty: the system can only impose that penalty at the superior court level, accepting the additional
delay and expense that a superior court trial entails. In 1974, only one fifth of those defendants [Page 128] convicted
on carrying charges sought a new trial in superior court, but in 1975 over 85% appealed.
As a consequence of this dramatic increase in appeals, follow-ups through Suffolk Superior Court proceedings
are critical to an accurate portrayal of Bartley-Fox prosecutions. Superior court trials for 1975 sample cases
were somewhat delayed while the constitutionality of the amendment was tested and affirmed, but, as of December
1976, fifty-five cases initiated in the 1975 sample had been concluded, and eighteen of the remaining sixty-five
cases had long outstanding defaults. More than half of the cases closed are those with additional felony charges;
these cases have been receiving sentences well in excess of the mandatory minimum. Although the disposition pattern
for those felonies is not significantly different from that in 1974, it represented a quantum leap for the carrying
charges themselves. With 32% of the 1975 sample cases actively awaiting trial, it would be premature to define
any pattern of dispositions.[105] Moreover, the sharp increase in the flow of carrying charge cases that do not
involve major felonies to superior court makes it most unlikely that the 1974 experience will be an appropriate
benchmark for testing case disposition patterns. But, since 14% of the 1974 sample cases that went
to Suffolk Superior Court were still awaiting trial-and another 19% were in default-it is clear that a satisfactory
case-by-case analysis will not be possible for several more years.
Perhaps the most striking piece of information in the data is the decrease in the total number of firearm and
carrying charges brought in 1975. In the 1974 sample, 350 defendants were charged with some firearm violation,
and 267 of these were charged with a carrying violation. In 1975, these figures declined to 243 and 203 respectively.[106]
These decreases can be interpreted either as a sign of increased citizen compliance with the licensing law or as
a sign that police officers are not enforcing the law. It is with this [Page 129] question in mind that the analysis
returns to the five research questions regarding whether the criminal justice system would evade or avoid the Bartley-Fox
mandate.
(1) Police officers would refuse to arrest "respectable citizens" for Bartley-Fox violations. It
is clear that significantly fewer firearm violation charges were brought in 1975 than in 1974. The 31% reduction
can, of course, be interpreted either as a sign of increased citizen compliance with the law, or as a sign that
police officers are not enforcing the law. Several vantage points can be taken in evaluating the likelihood of
these competing interpretations.
One can work from police records, with a sensitivity to police work in practice, and from compliance¾licensing
and registration¾statistics. This will be done in the second installment of this
article. We conclude there that compliance with the law has increased and that casual carrying of firearms has
declined.
One can also scrutinize the texture of charging decisions in each sample. Here we have seen that, although there
was some net increase in the proportional use of firearm violation charges in some gun-crime prosecutions, the
actual number of firearm charges brought in the prosecution of gun-related crime dropped 24% from the 1974
levels.[107] Outside the context of prosecutions for other gun-related crime, though, the drop was more substantial¾a 35% decrease, from 255 to 165 prosecutions.[108] Again, are we to attribute this
to compliance by those not involved in crime or to the decision not to arrest? A number of the characteristics
of the drop suggest that the major emphasis should be given to compliance.
First, the decrease cuts across categories of violations: while carrying charges not connected with gun-related
crimes dropped 27%, from 191 to 139, possession charges in similar prosecutions went down 69%, from 52 to 16.[109]
Even after one adjusts these figures for the change in the treatment of the carrying of long guns,[110] it is clear
that the decrease in firearm violation charges was not limited to the charge that carries a mandatory sentence.
Second, the existence of an across-the-board drop is consistent with, though certainly deeper than, the drop that
also occurred within gun crime prosecution categories where "sympathy" or discretion is unlikely
to account for any decline. Third, and perhaps most significant, the number of nongun felony prosecutions that
included some firearm violation charge showed a 49% [Page 130]
