Boston University Law Review
57 (1977): 289.
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 II

JAMES A. BEHA, II*

TABLE OF CONTENTS¾PART II

Click here to view Part I. http://www.saf.org/LawReviews/Beha1a.html

[Page 290]

The Bartley-Fox amendment, which took effect on April 1, 1975, introduced a mandatory minimum prison sentence of one year for the illegal carrying of firearms in Massachusetts Critics of the law predicted that police, prosecutors and Judges would react negatively to this restraint upon their prosecutorial and sentencing discretion and that the law's impact upon firearm crime would be negligible. Part I of this article, which appeared in the preceding issue, examined the manner in which the law was enforced and concluded: (1) that Bartley-Fox did have an impact upon the disposition of firearm assault prosecutions but did not affect Prosecutions for armed robbery and homicide; and (2) that, contrary to predictions, criminal justice officials did not systematically attempt to evade the mandatory sentence. This part of the article will examine Bartley-Fox's effect upon the \ general public. The areas that will be discussed include citizen compliance with licensing laws, the level of firearms in circulation, the casual availability of firearms for criminal activity and crime rates.

I. THE IMPACT OF THE LAW ON THE POSSESSION AND CARRYING OF FIREARMS

A. Introductory Notes

During the early stages of our research, we realized that there was widespread national interest in the impact of the Bartley-Fox law. That interest arose both from a concern over strategies for gun control and from the growing debate over the efficacy of mandatory minimum sentences in crime deterrence.[1] We therefore decided that it would be useful to collect what information we could on the law's impact, relying upon data obtained from public agencies or otherwise unearthed in the course of our court-centered study.[2][Page 291]

The sponsors of Bartley-Fox stressed that the mandatory provision would reduce gun-related crime through increased deterrence of the carrying of firearms and of their use in crime, as well as through the law's function as a signal to police and criminals that the system was prepared to take firm measures.[3] Pinpointing the effects of this law is a particularly slippery process because the behavior in question¾carrying a firearm without a permit¾was already subject to criminal penalties. However, to the extent that the mandatory minimum sentence has resulted in a measurable impact on gun control or crime reduction, an effort to quantify that impact might well begin by identifying two separate but interrelated components: a "logical" effect and a "publicity" effect.

Bartley-Fox's logical effect stems from the public's perception that severe penalties will now be applied in cases in which less severe penalties were previously applied. The potential logical impacts of the amendment include: (1) a compliance effect¾individuals "suitable" for licensing or eligible for firearm identification (FID) cards may be more likely to obtain the relevant papers; (2) a general circulation effect¾persons with an interest in carrying or purchasing a gun may be discouraged from doing so when they consider their unwillingness to become involved in the application process and their knowledge of the revised penalties; (3) a specific availability effect¾a reduction in the number of firearms in circulation and/or a greater reluctance to carry firearms illegally on a casual basis might prevent individuals who seek firearms as instruments of crime from obtaining them; (4) an intervention effect¾police officers may choose to break up potential criminal activity involving a gun before any attempt is made and may also consider it worthwhile to arrest known offenders found carrying a gun; and (5) a crime prevention effect¾individuals with an interest in using a weapon for illegal purposes may be deterred from using a gun or attempting the crime at all.[4] Any attempt to examine these potential impacts according to general deterrence theory should also include in the "deterrence calculus" certain other factors¾detection, apprehension, arrest and prosecution¾that, taken together, may minimize the possible impact of the mandatory minimum sentence.[5]

This part of our study also considers the effects of the publicity about the law upon those persons who might carry guns. Publicity is essential if [Page 292] there is to be any logical deterrent effect, because individuals must be aware that the behavior is prohibited and that a possibility of punishment exists. By focusing attention on the change in punishment, moreover, publicity can distort public awareness of the full deterrence calculus and thereby increase the public's perception of the certainty of punishment. Another key form of publicity effect could stem from public misunderstanding of the reach of the law. Indeed, because the licensing system is not readily understood, even technically accurate publicity may result in public misunderstanding. As was noted in the first part of this article, much of the coverage of the Bartley-Fox amendment was not technically accurate. In particular, two critical misconceptions were that the mandatory sentence applies to guns kept at home or at a place of business,[6] and that the "typical citizen" cannot easily obtain a license to carry a firearm.[7] These and other misunderstandings about the law could discourage eligible individuals from either keeping or carrying guns. Whatever the utility or propriety of this inaccurate publicity, the effects of such publicity do not flow from the logical structure of the penalty change.

In the remainder of this section, we discuss and evaluate the possible impacts of Bartley-Fox upon compliance, circulation, availability and intervention. Section II explores the Boston crime data available for the first two years under the new law and assesses any indirect or direct effects upon crime.

B. Available Indicators of the Impact of Bartley-Fox on Compliance, Circulation, Availability and Intervention

1. Compliance with Existing Permit and License Requirements

Since 1968, Massachusetts residents have been required to obtain an FID card to own or possess a handgun and to own, possess or carry a long gun.[8] Additionally, in order to carry a handgun, citizens must obtain a separate license.[9] Because the penalties for noncompliance were relatively minimal and infrequently applied,[10] however, compliance with these requirements was notoriously incomplete.[Page 293]

One might have confidently predicted that the enactment of Bartley-Fox's severe penalty for the unauthorized carrying of firearms would prompt many individuals who had neglected to obtain the proper authorization to do so at once. And, indeed, the law appears to have had that effect. The number of FID cards issued did begin to grow after Bartley-Fox was passed, and the number issued around the law's effective date was enormous.[11] This dramatic increase in compliance with the FID card requirement is not particularly surprising for several reasons: (1) the penalties for the unauthorized carrying of a long gun sharply increased; (2) because of the erroneous publicity, many people believed that the mandatory minimum sentence applied even when the firearm was kept in the home or place of business; (3) the publicity surrounding Bartley-Fox may have made many individuals aware of the FID card requirement¾initiated only in 1968¾for the first time; and (4) the FID card is relatively easy to obtain.[12]

What is most significant is that compliance levels continued to exceed those of prior years even after the sharp increase caused by Bartley-Fox, The number of permits issued during the last seven months of 1975 remained well above already record 1974 levels, indicating that those persons being introduced to firearm ownership were much more likely to comply with the law. Some of this compliance may reflect the effect of misleading publicity upon those individuals who merely want to possess a firearm at their home or business. However, the increase in FID cards issued is so enormous that it necessarily indicates that Bartley-Fox has introduced widespread compliance with the FID card requirement among those who possess or carry long guns, including those persons newly recruited to long gun ownership.

We also observed an increase in citizen compliance with the requirement that a license, as opposed to just an FID card, be obtained to carry a handgun. Because of a change in the period for which licenses are valid,[13] no currently valid licenses required renewal after mid-1974.[Page 294] However, lapsed licenses Could still be renewed after mid-1974, and a burst of renewals around the time that Bartley-Fox took effect in April 1975 suggests that a substantial number of those individuals who had allowed their licenses to lapse were swiftly persuaded by the new penalties to cease "living in sin."

The pattern of issuance of initial licenses to carry during 1974-1975[14] also suggests that Bartley-Fox created a pressing incentive for those persons who already carried handguns, but had never obtained a license, to obtain a license. That the issuance of initial licenses returned to the 1974 level after peaking when Bartley-Fox took effect may suggest, however, that individuals eligible for licensing who were newly recruited to carrying handguns were already relatively likely to obtain the license.[15] The law's effect can be most confidently interpreted as a shake-up of individuals who previously were likely to resist or ignore the law; we cannot definitively establish from available data whether there was any net effect on those obtaining handguns for the first time.[16]

2. Reduction in the Number of Firearms in General Circulation

Some individuals are not eligible for FID cards or for licenses to carry handguns; many who might be eligible for a license will nonetheless be turned down by the licensing authority;[17] and others may for a variety of reasons be unwilling to go through the application process. In the face of [Page 295] the new penalties added by Bartley-Fox, many of these people may decide not to purchase firearms, to turn in the guns they already have, or to transfer their guns to others. The net effect of the first two of these hypothetical decisions would be a reduction in the total number of guns in circulation. Determining whether such a reduction has occurred, however, is not easy.

The most frequently used techniques for estimating the number of firearms in circulation are public polls and extrapolations from the number or proportion of crimes committed with firearms. As to the first of these techniques, the samples drawn for national surveys are not large enough to yield statistically significant estimates for individual states[18] or to serve as baselines against which a local survey could be rigorously compared. Additionally, surveys are certain to miss a great deal of illegal handgun ownership. We therefore concluded that conducting a Massachusetts survey would be of minimal benefit in evaluating any general circulation effect.

The technique of extrapolating from. the number or proportion of firearm crimes is primarily used, to estimate trends in firearm circulation, not the absolute number of firearms in circulation. This approach is acceptable when the policy change under study is only intended to restrict circulation and would not have any direct deterrent effect upon firearm crime.[19] Bartley-Fox, by contrast, is aimed at deterring firearm crimes¾particularly the illegal carrying of firearms ¾and affects the number of firearms in circulation indirectly, if at all, by deterring firearm crime. In this context, any reduction in firearm use in crimes might be a product either of decreasing the number of firearms owned or of decreasing the carrying or use of firearms. Using firearm crime as a measure of general firearm circulation is therefore problematic in this case.

The number of registered firearm sales is a third possible indicator of firearm circulation, but there are serious limits upon this measure as well. A legal sale requires that the purchaser present the appropriate ownership or carrying authorization and that the seller report the sale. It is extremely unlikely that sales made illegally are then legally reported. More over, the majority of firearm owners purchase their weapons from private citizens,[20] and, although such transfers must be reported," this requirement is unenforceable in practice and widely ignored. Finally, many firearms¾including most handguns used illegally¾are purchased [Page 296] outside of the state, despite the prohibitions contained in the Firearms Control Act of 1968.[22] Therefore, the available statistics on registered firearm sales, although of some use as estimators, measure only a very limited sector of the market. Sales data suggest that Bartley-Fox temporarily depressed the firearm market, but the data do not show a clear long-term reaction.[23]

Another possible indicator for estimating the general circulation of firearms is the extent to which weapons were turned in voluntarily to the police. The Boston Police Department's Ballistics Unit reported that 1975 was the first year in which turn-ins by civilians were any significant part of their caseload.[24] Nonetheless, these turn-ins represent less than 1% of the firearms conservatively estimated to be in general circulation in Boston.[25] In short, although it is possible that some changes occurred in the various measures of firearm circulation around Bartley-Fox's effective date, none of these measures supplies a basis for concluding. that the general circulation of firearms in Boston or Massachusetts declined.

3. Reduction in Firearms Directly Available for Criminal Activity

In 1969, George B. Newton and Franklin E. Zimring persuasively argued that the quantity of firearms, and particularly of handguns, in general circulation was a causative factor in the number and proportion of firearm crimes, accidents and suicides.[26] Professor Zimring has recently reexamined this general proposition, however, in view of the sharp rise in [Page 297] crime¾including handgun crime¾in some of the northeastern cities that were the focus of the earlier analysis. Professor Zimring now suggests major refinement of the original hypothesis "that the general patterns of handgun ownership determine the extent to which handguns are used in violent episodes."[27] He finds current data more consistent with a "subcultural" focus on firearm circulation; the relevant measure is not general firearm circulation, but firearm availability to those likely to commit violent crime.[28] Thus, Professor Zimring's revised analysis is limited to policies that affect the level of handgun involvement in "subcultural violence"; he no longer argues that generalized gun control policies necessarily affect the total level of violence.[29] This revision carries, perhaps, a faint echo of the slogan "guns don't cause crime¾criminals do." In any case Professor Zimring's modification of his original hypothesis represents a major change in gun crime prevention theory.

Firearm "availability" has several different aspects. The opportunity to purchase¾typically illegally¾is one level of availability. A second, more immediate level is access to a weapon, such as one kept at home. Finally, the regular carrying of a firearm constitutes the most immediate level of ability. Bartley-Fox is only 'directed at this last aspect of availability. Implicit in Professor Zimring's analysis is the recognition that strategies focused upon availability need not necessarily also alter general circulation of firearms. In this context, narrower efforts to estimate trends in the Illegal carrying of handguns¾"casual handgun availability"¾take on critical importance. We attempted to estimate these trends for Boston[30] by relying upon two sources of data: the impressions of the "streetwise" and an analysis of arrests for the illegal carrying of a firearm.

A systematic survey of the streetwise would be very difficult to conduct, even if we could adequately identify the relevant sample. In the course of our research, however, we talked with a number of police officers and defense attorneys, and some of these individuals gave us their impressions of the effect of the law on the street. Although they were uncertain whether patterns of serious crime would be affected, these individuals believed that a substantial reduction in the casual carrying of handguns was taking place.[31] [Page 298]

The Boston Police Department maintains records on arrests for illegally carrying firearms; these arrest statistics, and the details in the underlying arrest reports, are the best available measure of how widespread the illegal carrying of firearms is.[32] The level of such arrests clearly declined in 1975, but nearly all of that decline occurred well after Bartley-Fox had taken effect in April 1975.[33] In interpreting this overall pattern, we are initially caught between two hypotheses to be explored in the next section: the argument that the change in the law would prompt the police to start running in criminals, and predictions that the police would start letting off respectable citizens. For reasons discussed in the next section, however, we conclude that the trend figures support the argument that the decline in arrests is basically a product of changes in the pattern of carrying firearms, rather than in police arrest practices.

This conclusion is buttressed by an analysis of the use of a firearm charge in prosecutions resulting from drug-related arrests. This is hardly an area in which police, out of sympathy for "respectable citizens," will exercise their discretion and not make an arrest. From April through September of 1974, the Boston Police Department. logged 598 drug-related arrests; thirty-seven of the resulting prosecutions included a [Page 299] firearm charge. In 1975, narcotics arrests declined only slightly, but firearm charges growing out of these arrests showed a 57% drop. A reduction of this magnitude almost certainly reflects a change in the casual possession and carrying of firearms by those in Professor Zimring's "subculture."

No source of information discussed in this section offers a definitive answer on the issue of availability; indeed, even when taken together, these sources may appear mere straws in the wind. They are, however, the best existing sources on the question of casual firearm availability in Boston. Each of these sources points to the conclusion that Bartley-Fox has produced some reduction in the immediate availability of guns by discouraging the casual carrying of firearms.

4. Bartley-Fox and the Exercise of Discretion by Police: Possible Changes in Strategies of Intervention

Proponents of Bartley-Fox have on occasion argued that the promise of a mandatory minimum sentence would encourage a police officer to intervene in likely criminal activity before an "attempt" occurred, confident that an arrest solely upon a Bartley-Fox charge would assure a prison sentence. This thesis is unpersuasive, both because police patrol tasks are essentially reactive in nature and because good patrol officers are strongly intervention oriented. If trouble is perceived, it is broken up as quickly as possible; police officers do not wait until potential trouble becomes an attempt.[34] A somewhat different version of this argument maintains that introducing a mandatory minimum sentence increases the incentive to "roust" troublemakers and "clean up" the streets.[35] Although this version may still fail to accurately depict the realities of police-citizen confrontations, it merits further exploration because of the frequency with which it has been argued.

As noted in the previous section, arrests based primarily upon carrying and possession charges decreased after Bartley-Fox's effective date.[36] This decline can be reconciled with the assertion that police officers will be more likely to use the charge as a basis for arrest when they can only if one concedes the validity of our conclusion that the illegal carrying of firearms in Boston has also declined. Even on such terms, though, a trend such as this is not affirmative evidence that Bartley-Fox has become a substantial too] in cleaning up the streets.

An alternative prediction about police response to the law¾and a potential alternative explanation for the decline in arrests for firearm carrying violations¾is that police will evade the law in the case of "respectable" citizens found "unintentionally" or "accidentally" in violation of the law.[37] One way that the police might evade the mandatory minimum [Page 300] sentence in such cases while still making an arrest and seizing the firearm would be to charge the defendant only with illegal possession of a firearm. Our study of court and police records establishes quite clearly, however, that this has not occurred in Boston.[38] The cases that we reviewed that were based primarily upon a possession charge would not have supported the more serious charge on their merits. The court study also establishes that police did not drop charges between the booking and court complaint stages. We cannot say, on the basis of the data that we collected, that the police never look the other way in certain situations. But we can say that arrests have been made in circumstances that appeared ripe for such discretion, including many cases in which the defendant had no prior record and was only in "unintentional" or "accidental" violation of the law.

The timing of the decline in arrests for carrying a firearm may also reveal the extent to which discretion is exercised by police in possible arrest situations. One might expect that any "sympathy factor" would be most powerful in the early months, when both citizen ignorance of the law and police ambivalence toward it would be highest. However, arrests under the law did not decline appreciably during the period from April through June; the decline began in July and emerged definitively only in the last months of 1975.[39]

Both the arguments that Bartley-Fox functioned as a substantial new tool in "getting" known troublemakers and the argument that "respectable" citizens would not be arrested and charged by police are further undermined by the fact that a large proportion of those arrested had no prior criminal records. Our review of probation records for defendants at five of the eight courts covered by our study indicated that a third of the 1975 defendants had no prior records, while 12% of the remaining two thirds had only minor records; in fact, 1975 Bartley-Fox defendants were less likely to have a significant prior record than were pre-Bartley-Fox defendants in 1974. Furthermore, based upon the limited amount of background information that we have for most defendants, i.e., race, sex and occupation, there was no significant difference between Bartley-Fox defendants and those prosecuted in 1974. Indeed, although many critics were concerned that the black community would be disproportionately penalized under the new sanctions, there was a noticeable decline in the proportion of defendants who were black.[40] [Page 301]

II. BARTLEY-FOX AND FIREARM CRIME

The net change in the number of "street" or "violent" crimes involving handguns is a critical measure of the impact of Bartley-Fox. Reducing violent firearm crime was certainly uppermost in the mind of the law's chief advocate, Judge J. John Fox.[41] Judge Fox thought that, if potential criminals recognized the change wrought by Bartley-Fox in the certainty of their incarceration and, perhaps, in the severity of the term imposed, a long-term decline in firearm-related crime would be inevitable.[42] The reduced availability of firearms, a more immediate prospect, might also reduce firearm crime because a potential offender without access to a firearm might decide to abandon the contemplated crime.[43]

Firearms play a substantial role in the crimes of robbery, assault[44] and homicides.[45] Firearms may, of course, be carried by those engaged in almost any crime, but their reported use will most often cause the overall event to be categorized by the police as armed robbery, aggravated assault, or homicide.[46] Unfortunately, the most widely publicized measure of firearm crime¾the number and proportion of homicides by firearm¾is a very unreliable measure of trends over short periods of time, Although homicides are considered to be thoroughly reported, they remain relatively rare; and firearm homicides are even rarer, averaging six or seven per 100,000 population per year in large cities. The number of, and rate of change in, firearm homicides and total homicides are accordingly rather volatile figures, especially over limited periods of time. We will present and discuss the available data on firearm homicide, but only events with substantially higher incidences¾robbery and assault¾will allow us to separate with confidence the "noise" of fluctuation from the "message" of any trends developing so far under Bartley-Fox.

At this point, our estimates of the deterrent effect upon criminal activity are based only upon the public's expectations of how Bartley-Fox will be applied and enforced. It takes an average of eight months from the moment of arrest on a "major violation" to a final binding disposition in [Page 302] Suffolk Superior Court[47] and substantially longer for less serious violations. Also, very few defendants convicted in the lower courts under the Bartley-Fox statute have chosen to waive their right to a new trial in superior court. Under these circumstances, more than a year had to pass after the law's effective date before anything became known about the final court consequences of an arrest on a Bartley-Fox charge. Moreover, the deterrent effect of knowledge about the law's threatened mandatory penalty ultimately could differ from the effect of knowledge about how Bartley-Fox is actually applied.

A further caveat is particularly important because of the relatively short-range perspective of this study. Although police crime statistics reflect incidents reported to the police, a substantial number of crimes, including many serious ones involving the use of weapons, go unreported.[48] Rates at which citizens report crimes to the police vary across jurisdictions and over time. Thus, an argument can be made that any short-term variations in police crime statistics may be attributable to fluctuations in reporting rather than to variations in the level of crime.[49] Nonetheless, to the degree that Bartley-Fox produced changes in crime rates, one would expect to find some evidence of those changes during the first year after the law's effective date. The analyses that follow therefore concentrate primarily on the period from April 1975 to March 1976, with reference to patterns of firearm crime over the remainder of 1976 and the first quarter of 1977 where appropriate.[50][Page 303]

A. The Immediate Context: Levels of Crime in Boston[51]

Compared to other cities with populations over 25 0,000,[52] Boston has an extremely high rate of reported robberies. The 1974 Uniform Crime Reports issued by the FBI indicate that Boston had 1,122 reported robberies per 100,000 population, a rate second only to that of Detroit, and fully 73% higher than the average rate for other large cities.[53] The pattern of firearm robbery in Boston, however, was somewhat different from that of other cities. Although the 1974 FBI data indicate that approximately 42% of the reported robberies in large cities involved a firearm, the proportion for Boston was approximately 31%.[54] Boston's estimated per capita rate of firearm robberies was thus 348 per 100,000 for 1974¾28% higher than the per capita figure for other large cities.

Boston's 1974 per capita rate of reported aggravated assaults of 403 per 100,000 was 5% higher than the average figure for other large cities. But the proportion of assaults involving firearms in Boston, 23.2%, was lower than the 29.9% rate for other large cities.[55] Thus, Boston's 1974 per capita rate of firearm assaults, 97 per 100,000, was 18% below the average rate for other large cities. Finally, although Boston's homicide rate was approximately the same as that of other large cities, the proportionate use of firearms in homicides¾52% in 1974¾was again well below the 1974 national level of 68%.

When Bartley-Fox was enacted in mid-1974, the crime picture for both Massachusetts and Boston was bleak. Robbery and assault rates had increased steadily from 1971 through early 1974; homicide rates, which had remained fairly constant from 1970 to 1972, jumped significantly in 1973 and showed no sign of receding in early 1974. Boston's homicide rate increase was almost totally due to a 54% rise in the firearm homicide rate. Under these circumstances, one might anticipate that, if the level of crime at Bartley-Fox's passage were considered the zenith of a fluctuating trend, some decrease might follow as part of a natural curve.[56][Page 304]

TABLE I

Comparative Figures: Reported Incidence
of, and Percentage Change in, Robbery,
Aggravated Assault and Homicide
1970-1975

The homicide rate did level off in late 1974 to early 1975, with a net drop, including a proportional drop in firearm homicides, appearing in the first quarter of 1975. But no downturn was observed either for [Page 305]

TABLE II

Proportion of Total Crimes Committed
with Firearms

							Cities over
	Boston		Massachusetts		Northeast		250,000		Nation
	%		%		%		%		%
Homicide
1970	47.0		44.0		50.0		*		65.0
1971	48.0		47.0		49.0		*		65.0
1972	48.0		55.0		52.0		*		66.0
1973	62.0		53.0		51.0		*		67.0
1974	51.5		49.6		51.7		*		67.9
1975	47.1		43.9		51.3		*		65.8
Aggravated
Assault
1970	24.0		16.0		17.0		*		24.0
1971	26.0		17.0		19.0		*		25.0
1972	25.0		16.0		20.0		29.0		25.0
1973	25.0		18.0		20.0		30.0		26.0
1974	23.2		19.4		18.9		29.9		25.4
1975	17.8		14.2		17.6		28.5		24.9
Robbery
1974	31.2		36.2		34.0		42.0		44.7
1975	28.4		33.7		32.7		42.5		44.8
* = not available Source: FBI Uniform Crime Reports

robberies or for assaults during the same period; these rates continued to increase throughout 1974 and early 1975, and at a faster rate than in other large cities. Thus, at the time of the law's effective date, a full eight months after its enactment, there was no evidence from the assault and robbery figures that the legislative action had coincided with a "regression toward the mean" effect, although a shift in the level of homicide had Occurred. The combination of the delay between Bartley-Fox's enactment and effective dates, and the absence of any general regression effect during that period, would appear to demonstrate that most of the indicators in our study of Bartley-Fox's effects are isolated from a decrease due to any hypothesized zenith reaction.

B. Recent Trends in Firearm Crime[57]

The methodological and background discussion has focused primarily upon total crime rates, rather than upon the rates for firearm crimes, because the rate of firearm crime is not usually known to legislators and [Page 306] the public; thus, it will not be a critical determinant of crime control strategies. For the purpose of analyzing the impact of the law, however, we must try to isolate and decipher shifts in the incidence of firearm specific crime.[58]

The Boston Police Department provided us with monthly data for 1972 through the first quarter of 1977 on reported robberies, homicides and assaults and, when available, the proportion of each crime alleged to have involved a gun.[59]

TABLE III

Average Monthly Incidence by Quarter of
Reported Firearm Crime in Boston
1974 and 1975

[Page 307]

In the following analysis, we employed two indicators of the role of firearms n crime: the number of those crimes that reportedly involved firearms and the proportion of alleged firearm use in each of those crimes. The number of firearm crimes fits into a discussion of the deterrence calculus, but attention to the proportional role of firearms in specific crimes may also allow us to eliminate other factors that affect the general level of crime.[60] We have avoided drawing conclusions from either of these measures alone because only interpretations consistent with both are likely to stand the test of longer-term analysis.

A number of preliminary comments about effects exhibited during the first two years of Bartley-Fox can be made by comparing current crime patterns to prior trends in Boston and also by cursory cross-checking against state and national data on 1975 firearm crime. However, long-term local and national data will be essential to determine whether observed movements continue over time.

1. Use of Firearms in Robbery

An earlier section pointed out that shifts in firearm availability are unlikely to reduce the premeditated use of firearms, most pronounced in the predatory crime of robbery, unless those shifts are quite dramatic.[61] Although we found evidence of reduced availability around the time that Bartley-Fox took effect, we cannot say that this was sufficiently drastic to constitute a firearm shortage. Nonetheless, to the extent that potential robbers might have adopted a "wait and see" attitude toward the law, some short-term effect might be expected.

Both total robberies and armed robberies rose steadily from the end of 19-11, with a sharp increase occurring between May 1974 and January 1975.[62] Although the rates dropped between January and May, they rose again sharply in the second half of 1975. The robbery rate never went substantially below the high 1974 level during 1975 and remained well above the figures for 1972-1973.

Firearm robberies, which constituted roughly 36-35% of all robberies committed in 1974,[63] did not fluctuate as dramatically during late 1974 and early 1975 as did total robberies.[64] Monthly data on robberies in 1975 indicate that the 26% decrease from the preceding year in firearm robberies during May and June has no particular significance in terms of Bartley-Fox especially given the fact that an equivalent increase in firearm robberies from the preceding year had occurred in April, the month in [Page 308] which the law took effect. These figures do, however, make sense in terms of more general trends in both armed and unarmed robbery over the 1972-1975 period.[65] Although robberies of all types had shown steady growth over the months of January 1972 through June 1974, the July 1974 to January 1975 period jumped substantially above the preceding months' trend line for total and for armed robberies. By February the long-term pattern was reasserted; thus, the primary "effect" observed here seems to be created by an abnormally high level of all forms of robbery in late 1974 and a correcting reduction in 1975.[66] Crime data for 1976 and the first quarter of 1977 have reinforced this analysis: a visible break in the growth of robbery in Boston has finally appeared. Although that reduction has extended to firearm robbery, the drop in firearm robbery was no more extensive than the decline in other forms of robbery until the summer of 1976. Thus, during the first fifteen months the law was in effect, the proportional role of firearms in robbery remained unchanged.[67] From July through December 1976, however, the decline in firearm robbery was far more pronounced than the overall decline in robbery, thus establishing a noticeable reduction in the role of firearms in robbery. This effect was, however, partially reversed in the first quarter of 1977.[68]

There seems to be no logical or empirical reason to attribute to Bartley-Fox the shift in firearm robbery that briefly emerged in the latter part of 1976. In fact, there are several reasons to discount the impact of Bartley-Fox. First, the law did not produce a sustained impact during the first year it was in effect.[69] Second, our court study confirmed that Bartley-Fox could make no substantial contribution to the deterrence of firearm robbery.[70] Third, there is a plausible rival explanation for the [Page 309] decline in firearm robbery.[71] In the summer of 1976, the Bureau of Alcohol, Tobacco and Firearms instituted a "crackdown" on illegal firearm sales in Boston. Such crackdowns have elsewhere succeeded in significantly reducing the level of firearm availability.[72] The crackdown may be responsible for this slight¾but statistically significant¾acceleration in the decline in firearm robberies. Finally, since this "trend" did not persist beyond December of 1976, the argument that this brief drop was little more than random fluctuation certainly cannot be ruled out. In any case, there is no plausible argument that Bartley-Fox would produce a noticeable impact at this stage.

Despite these comments about its long-term impact, we must recognize that a brief shift in weapon choice did occur when Bartley-Fox was taking effect. The use of a firearm in robbery declined during the first six months of 1975.[73] This did not, however, produce any drop in either total robberies or armed robberies during that period; other weapons took up the slack, and the proportional use of weapons in robbery actually increased slightly during the same period.[74] It does not seem unreasonable to attribute this shift from firearms to other weapons to apprehension about Bartley-Fox and a related reluctance to carry a firearm. But, because this effect appears to have been temporary, it was perhaps more a product of publicity about the law than of any fundamental shift in the deterrence of firearm robbery. Similar effects might be reproduced if sustained publicity were given to the law again¾and particularly if Bartley-Fox's success in incarcerating those individuals arrested for illegally carrying a firearm could be demonstrated.

That any suppression effect was temporary is consistent with our perception that the level of firearm availability did not decline sufficiently as a result of Bartley-Fox to produce a direct, sustained effect upon firearm robbery.[75] Thus, although Bartley-Fox may have caused a temporary shift from firearm robbery to other forms of armed robbery, that effect has dissipated, resulting in no net effect on the level of firearm use in robbery.

2. Use of Firearms in Assaults

The nation as a whole has seen a steady growth in the popularity of guns as tools of assault, evidenced by an increase in the ratio of firearm [Page 310] assaults to total assaults from 13% in 1963 to 25% in 1971.[76] Since 1971, the national ratio has remained fairly constant, hovering around 25-26%. 77 Unlike its record for robbery and homicide,[78] Boston's firearm assault/total assault ratio closely resembled the national ratio until 1975, when Boston's ratio plummeted to 17.8%.[79] Closer examination of assault data for Boston reveals that the similar timing of this drop and of the effective date of Bartley-Fox is no coincidence.

Monthly data on total and firearm assaults in Boston from 1972 through the first quarter of 1975 indicate that the number of total assaults rose from year to year with seasonal variations¾most assaults occurring in the summer or early fall months.[80] Until March 1975, the number of firearm assaults followed a path similar to that of total assaults¾increasing and displaying regular seasonal variations. The March drop does not seem to be an accident, for the number of firearm assaults remained below 1974 and 1973 levels through the next nine months and into 1976 while total assaults climbed steadily. Moreover, even as total assaults continued to follow seasonal patterns, firearm assaults-for the first time in the 1970s¾did not. The average number of firearm assaults was roughly the same for the period from April through December as in the first quarter of 1975, a clear break with prior patterns.[81]

These patterns persisted throughout 1976 and into the first quarter of 1977, according to the most recent Boston Police Department data. Although the number of assaults continued to increase in 1976¾albeit not by the giant steps of 1975¾the number of firearm assaults showed only a 2% increase over the low level of 1975.[82] Accordingly, the proportion of assaults that involved firearms dropped in 1976 to a new low of 16.9%.

In analyses that rely on raw statistics¾which often behave in an aberrant manner over the short term¾one must be careful not to rule out the possibility that other factors caused the phenomenon observed. Yet Boston's pattern of assault data seems consistent with the claim that the reduced use of firearms is closely tied to Bartley-Fox.[83] That the initial drop was felt in March¾one month before the law's effective date¾may [Page 311] be explained by a reduction in the casual carrying of firearms resulting from the extensive publicity in advance of the law's effective date.[84] The most significant fact, however, is that the ratio of firearm assaults remained low after the initial decrease through at least the first quarter of 1977¾two full years after the decline began¾even as the number of total assaults climbed steadily[85] and the attendant publicity petered out. We must, of course, await further data to see whether this experience under Bartley-Fox continues over time; nevertheless, these preliminary results indicate that Bartley-Fox deterred many potential assailants from casually carrying firearms and thereby reduced the use of firearms in the assaults that did occur.

3. Use of Firearms in Homicide

Boston's homicide rate has dropped dramatically over the last two years, from highs of 135 in 1973 and 134 in 1974 [86] to 82 in 1976.[87] Precisely how much of this decline is attributable to Bartley-Fox remained uncertain during the first year the law was in effect, but it now seems clear that a reduction in the casual carrying of firearms has been a large factor.[88] In examining homicide rates, and particularly firearm homicide rates, it must be remembered that these rates will show substantial percentage variations over short periods of time. For example, a drop of only two firearm homicides per month in Boston during the first quarter of 1975 would represent a 36% change.

Homicides occur in two different contexts: during the commission of a felony, typically a robbery, or as the result of an assault.[89] Homicide rates may therefore depend in large part upon increases or decreases in assault and other felony rates. Homicide rates also fluctuate depending upon the nature of the associated crime. For instance, the rate at which a felony like robbery produces homicides in Boston is extremely low¾less than one third of one percent [90]¾and is unlikely to be affected by small shifts in the kinds of weapons used. Nonetheless, the extent of felony-related homicide can fluctuate from year to year; these fluctuations will obscure analysis of the link between assaults and homicides unless they are carefully excluded from the analysis.[91] The rate at which assaults produce [Page 312] homicides, on the other hand, varies greatly depending upon the weapon employed. Rather than being considered separately, the rate of assault homicide may be viewed as the product of the number of assaults¾both fatal and nonfatal¾and of the dangerousness of the weapon used (fatality ratio).[92] In Boston, about one in ten known firearm assaults results in a fatality; other weapons produce fatalities only about one time in forty.[93]

TABLE IV

The Relative Dangerousness of Weapons
Used in Assaults: Boston
1972-1975

Source: Boston Police Department records

If fatality ratios do remain fairly stable over the long term, one might expect a reduction in firearm assaults to effect a proportionate reduction in homicides. However, fatality rates may fluctuate over the short term and thus obscure studies of the actual impact of a law like Bartley-Fox on overall homicide rates. For example, firearm assaults in Boston increased from 625 in 1973 to 671 in 1974, yet the number of fatal firearm assaults [Page 313] dropped from 70 to 51.[94] In 1975, the year in which Bartley-Fox went into effect, firearm assaults dropped for the first time in years, from 671 to 592; but the fatality ratio for firearm assaults returned closer to its historical mean, and the resulting drop in firearm assault homicides was negligible (51 to 50).[95] Therefore, any impact Bartley-Fox might have had upon homicide rates during its first year was clouded by a very low fatality ratio for the preceding year.[96] However, had Bartley-Fox not reversed the long-term rise in firearm assaults,[97] Boston would almost certainly have experienced a very substantial increase in assault-related homicides during 1975. Boston's 1976 drop in the homicide rate¾which has so far persisted into 1977¾is belated evidence of the decline in homicides that might have been expected in 1975 were it not for the 1974/1975 fatality ratio disparity. Total homicides fell in 1976 from 119 to 82 a dramatic reduction in firearm assault homicides from 50 to 27 was largely responsible for this drop.[98] Commenting on these figures, a police spokesman said, "People must be thinking twice before they carry a gun."[99] If one accepts the prevailing theory about the long-term stability of the fatality ratio, then it would appear that Bartley-Fox's effect on the casual carrying of firearms and the resulting depression of the role of firearms in assault is now showing up as an impact on firearm homicides.[100][Page 314]

C. Concluding Notes on the Impact of Bartley-Fox

We might briefly summarize the conclusions reached in this and preceding sections as follows: (1) Bartley-Fox and its attendant publicity clearly prompted many Individuals in Massachusetts who had been keeping and carrying firearms without. the proper papers to obtain the appropriate permits; (2) there is no indication, based upon available¾and highly imperfect¾measures that the law had more than a very temporary impact on the number of firearms in general circulation in Massachusetts; (3) there are indications that the law contributed to some reduction in Boston in the casual carrying of firearms away from home or business. Publicity about the law may also have reduced the number of firearms kept at home;[101] (4) given the increase in compliance with permit requirements and the decrease in casual carrying of firearms, it is difficult to determine from arrest patterns whether police have modified the criteria that lead them to arrest, or whether police, armed with Bartley-Fox, more frequently arrest those found carrying a gun before commission of a crime. In Boston, at least, there is no evidence to confirm an increased use of firearm-violation arrests as a technique of getting "troublemakers." Further, although police may on occasion decide not to arrest otherwise 11 respectable" citizens who have violated these laws, respectable citizens are being arrested under Bartley-Fox, and the pattern of police activity in this area is not consistent with either discrimination or widespread evasion of the law; (5) an analysis of robbery, assault and homicide trends does not, to date, reveal any clear deterrent to those crimes created by anticipation of additional Bartley-Fox penalties. However, a definite shift away from the use of firearms in assaults has occurred; this seems primarily due to increased attention to permit requirements and reduced casual availability of firearms. The number of total aggravated assaults remains undiminished, but the shift from firearms to other weapons prevented an otherwise likely increase in assault fatalities during 1975. In 1976 and early 1977, moreover, Boston experienced a definite drop in firearm assault homicides¾a clear result of the sharp drop in firearm assaults. Nonetheless, because of the volatility of homicide rates, we must await several years of national and local data on homicide trends to assess with precision the long-term impact of Bartley-Fox upon firearm use in homicide. The drop in firearm availability does not appear to have been of sufficient dimensions to have any long-term effect on the use of firearms in robbery, generally a more premeditated crime than assault or homicide.

In short, our research supports, although in a limited fashion, the argument that a publicized threat of a mandatory sentence for carrying a firearm can reduce the illegal carrying of firearms and thereby decrease the availability of firearms for casual unpremeditated crime.[Page 315]

We must stress that any changes in criminal behavior to date are due solely to the public's expectation that significant penalties will be imposed tinder Bartley-Fox; this article is the first comprehensive effort to measure the extent to which such penalties are actually imposed and to examine the implications both for firearm crime and for firearm carrying. Only after information about the actual application of these penalties becomes public can one. begin to gauge any concrete deterrent effect.

Our study of Bartley-Fox's effect upon compliance, circulation, specific availability and intervention persuades us that the law has in fact changed citizen behavior toward firearms. Indeed, some of those effects have extended beyond the illegal carrying of firearms to firearms kept at homes and businesses as well. Because this arena is not covered by Bartley-Fox, it seems clear that the inaccurate publicity about the law played an important role. The general public may have little knowledge of how criminal behavior is penalized; thus, widespread dissemination of such information¾even if totally inaccurate¾can affect behavior. More extensive knowledge about the existing application of penalties, when those penalties are not in fact consistently trivial, may increase compliance with the law¾particularly when it is not universally known that the behavior in question is prohibited.

We have also learned from this portion of the study that the link between firearms and firearm crime is considerably more complex than is frequently assumed. Thus, we saw that a reduction in casual firearm availability need not presage a reduction in firearm use in robbery. As the assault data reveal, even when firearm use is reduced, crime will continue. Firearm homicide rates must also be closely scrutinized to prevent fluctuations in subareas¾such as felony-related homicides¾from obscuring the relationship between assaults and homicides. Finally, minor variations in the fatality ratio complicate any short-term study of assaults and homicides. These factors can be critical, yet they have rarely been considered in discussions of gun control and gun crime.

III. SUMMARY AND IMPLICATIONS

A. Summary

At various points in this article we have summarized answers and hints drawn from the institutional and impact analyses. In this final section we gather these statements to frame the principal conclusions of the study.

1. Strengths and Weaknesses of the Statute as Drafted

The sponsors of Bartley-Fox intended it to be a weapon in the fight against spiraling rates of violent crime.102 Its mandatory sentence was appended to a statute regulating firearms, however, and was not directly linked to the prosecution of violent crime. Placement within that statutory [Page 316] scheme had important consequences for the practical application and utility of the mandatory minimum sentence For example, because the penalty was linked to firearm regulation, It incorporated the tests of control and possession and it was restricted to weapons having a capacity to fire shot or bullets.[103] However appropriate these tests were for the regulation of firearms, they sharply curtailed the utility of the law in prosecutions for gun-related crimes. And although judge Fox described the law as "a first signal . . . to the several hundreds of thousands of youngsters who have been committing crimes because we taught them that crime does pay,"[104] the law as drafted does not intrude upon the operations of the juvenile justice system.[105] The mandatory sentence affects only those rare cases in which the juvenile is tried as an adult.[106]

The careful manner in which Bartley-Fox closed off avenues of informal disposition distinguished it from many other mandatory sentencing laws, which typically forbid suspended sentences and probation but do not cover informal probation, the filing of guilty findings prior to entry of conviction and similar dispositions. Without this careful drafting, lower courts would probably have expanded their use of such informal techniques as a way to sidestep the mandatory sentence.

Although Bartley-Fox increased the likelihood that prosecutions for firearm assault¾but not for other gun crime¾would result in a prison sentence if a carrying complaint were also included, it remained true that carrying charges could not be used in three fourths of the prosecutions for gun-related crimes that we studied.[107] Instead, the majority of the prosecutions for Bartley-Fox offenses were based on circumstances that produced no other felony charges.[108] Further, because proof of a carrying offense often involves complex evidentiary steps, a significant number of cases resulted in dismissal or acquittal. Even before introduction of the mandatory sentence, at least one third of all prosecutions for illegally carrying firearms failed on the merits to produce convictions.[109] And as Bartley-Fox increased the prospects of a substantial sentence, more defendants contested the merits of each case, thereby increasing acquittals in 1975.[110]

2. Enforcement of the Law

Bartley-Fox does not appear to have influenced Boston police decisions to make arrests for illegally carrying firearms. Although police officers [Page 317] might occasionally have avoided making arrests in "sympathetic" cases, such deliberate inaction was, not frequent or consistent.[111] The drop in the total number of arrests and prosecutions thus appears to have been the result of increased compliance with the law,[112] Moreover, the mix of persons prosecuted did not change significantly: about half the prosecutions continued to be unrelated to other criminal activity,[113] and the age, sex and marital characteristics of the 1975 defendants were about the same as those of the 1974 defendants.[114] Defendants in our 1975 sample were actually somewhat less likely to have a significant past criminal record or to be from minority groups.[115] Although neither of these differences was statistically significant, they certainly are inconsistent with the prediction of opponents of the Bartley-Fox amendment that the law would be enforced in an arbitrary or discriminatory fashion.

We found no evidence that police, prosecutors, or judges evaded the mandatory sentence by relying on lesser charges of illegal possession of a firearm.[116] Nor was there evidence that police and prosecutors dropped cases Prior to a hearing on the merits.[117] As a result of Bartley-Fox, defendants were more prepared to argue, and judges were more prepared to consider, legitimate procedural defenses; however, defendants who were caught "red-handed" were almost invariably convicted in the lower courts. Most defendants who benefited from judicial discretion probably would not have been convicted even before Bartley-Fox.[118] The bulk of the drop in the conviction rate for those facing only carrying charges may thus be traced to more vigorous defense work,[119] rather than to judicial evasion of the law.

Those defendants charged with felonies in addition to the illegal carrying of a firearm stood a far greater chance of being convicted, bound over, or indicted after Bartley-Fox was introduced. This was particularly true in cases in which assault charges were brought but then dismissed. Under prior practice, the remaining firearm charge in most such cases was disposed of by informal or formal probation; however, under Bartley-Fox, bindover or conviction and a prison term became the typical response.[120]

The mandatory minimum sentence has ensured that nearly all defendants convicted in the lower court will seek a trial de novo in superior court,[121] a sharp reversal of prior practice. This reversal is consistent [Page 318] with the general pattern of lower court dispositions for all crimes, because nearly all defendants receiving sentences of incarceration from a lower Court do appeal. The majority of Bartley-Fox prosecutions that have been decided in Suffolk Superior Court to date have resulted in conviction.[122] Because of the court's backlog and because some cases were postponed until the Supreme judicial-Court determined the constitutionality of the law, it may be at least another year before all the cases in our sample that have proceeded to Suffolk Superior Court are adjudicated. Additionally, it appears at this time that Bartley-Fox has significantly increased the likely hood that defendants will default prior to final disposition of their cases, particularly at the superior court level. This change is not a product of an increase in default rates at either court level, but of the increase in the number of cases requiring further proceedings at the superior court level. The increase in cases, by increasing the opportunities for defaults at the superior court level, produced a sharp jump in the total court system's default rate.

Although the law has clearly been bent from time to time in dealing with Bartley-Fox cases, the overwhelming impression remains that criminal justice personnel have enforced the law and applied the mandatory sentence in accordance with its terms. But enforcement is a slow process, and the introduction. of a mandatory minimum sentence has made the process even longer. Based upon the trends to date, our estimate is that Bartley-Fox will, in the end, increase at least five-fold the number of defendants Boston courts will have sentenced to prison for illegally carrying a firearm.[123]

3. Impact of the Law Outside the Criminal justice System

If Bartley-Fox is judged by its effect upon compliance with the licensing requirements and on the illegal carrying of firearms, then it is a clear success. The law and its attendant publicity have drastically improved public compliance with the licensing and FID requirements.[124] This improvement has extended¾in part because of inaccurate publicity¾to compliance with related permit requirements not covered by the mandatory sentence. On the other hand, Bartley-Fox does not appear to have reduced the total number of firearms in the Commonwealth.[125] Yet, when we focused on the narrower issue of the casual illegal carrying of firearms, using Boston as the test site, we did find evidence¾not definitive, but the clearest likely to be available¾that the casual carrying of firearms [Page 319] declined because of Bartley-Fox.[126] Even though this change did not reach the level of a firearm shortage, it seemed to be substantial.

We had no reason to believe that Bartley-Fox would directly deter firearm crime; however, our research confirmed our expectations that if the law succeeded in reducing casual illegal carrying of firearms it would then generate a reduction in the use of firearms in unpremeditated crime.[127] Bartley-Fox had at most a momentary impact on the use of firearms in robbery[128]¾typically a premeditated crime¾and even that momentary effect did not change the overall level of armed robbery. By contrast, a clear impact on the use of firearms in assaults was apparent,[129] Although assaults as such did not decline as a result of Bartley-Fox, there was a sharp change in the extent to which firearms were used in committing assaults.

Criminological literature on assaultive crime suggests that, because the firearm is by far the most lethal assaultive weapon, a shift away from firearms in assaults will reduce assault-related homicides.[130] Although the 1975 data left us unsure whether such a reduction would be possible in Boston, the dramatic drop in Boston's homicide rate in 1976 tends to confirm this thesis.[131] Because Boston has always had a very low rate of firearm homicide,[132] any drop in that rate, large or small, should be considered a significant achievement.[133]

4. The Limits of This Study

The research designs applied in our study have their practical as well as theoretical weaknesses. These constraints have been discussed at appropriate points in both parts of this article, but the reader should be reminded of three overarching limitations. First, the indicators used throughout this article can measure the topics to be studied only indirectly. For example, we have focused, by necessity, on levels of reported crimes, an imperfect measure of actual occurrence of crime.[134] Similarly, in our study of judicial discretion in the lower courts, we relied upon statistical comparisons and attorney interviews rather than upon direct observation or interviews with judges.

The second limitation springs from the data available to us. Court and police records simply are not as detailed or complete as one would like. [Page 320] Few attorneys refused to cooperate with our study, but the attorney study was nonetheless significantly reduced in scope by the absence of information in court records identifying the attorneys.[135] In some areas¾such as the extent of weapon ownership¾adequate statistics are simply unavailable.

The constraints of time present the third limitation. We have confined the court study to assessing lower court enforcement of the law. Even though our sample was limited to cases filed by September 30, 1975, it might still be another year or more before all sampled cases requiring superior court handling have been concluded. Further, the sample is closed and our conclusions on court practices apply only to the cases we followed; we cannot guarantee that current practice¾or, indeed, practice outside Boston¾is precisely the same.

The effects of these time constraints upon our impact analysis are somewhat different. The first year's experience has shown clear patterns in the law's impact. In general, our tentative conclusions reached on the basis of data from the twelve months after the law took effect on April 1, 1975, have been confirmed¾and, in some cases, significantly strengthened¾by analysis of crime statistics for the remainder of 1976 and, early 1977. However, several additional years' experience will certainly be required to determine whether the patterns, particularly the reduction in firearm homicides, have enduring significance. Moreover, the publicity on Bartley-Fox has both diminished and taken an uncertain tone since the initial "burst." It remains to be seen how this will affect citizen compliance with the law. Time constraints have also precluded any analysis of 1976 crime data for the state as a whole, since these statistics must first be compiled by the FBI from reports on each locality, a process not complete at this time. Finally, time constraints have prevented us from exploring other areas in which Bartley-Fox might show an impact, because data on suicides, accidents and victimization are not yet available for the post-Bartley-Fox period.[136]

B. Suggestions for Additional Research on Bartley-Fox

A number of areas not covered by this study might fruitfully be included in additional research. First, we learned during our work that different jurisdictions within the Commonwealth use different criteria in issuing licenses to carry firearms. Because the license is the centerpiece of [end Page 320] the present scheme of regulation, a study documenting such differences and exploring the reasons for, and consequences of, those differences could make a significant contribution. Such a study could profitably focus on several questions: (1) under "tight" licensing criteria, how many people can demonstrate a clear need for a handgun? (2) under "loose" conditions, how many more will obtain licenses? (3) how many licensees in either group commit a crime with the weapon? (4) how many licensees have had there weapon stolen?

The handling of cases in the superior courts offers a second area for study. Although we have been able to present data on the pattern of disposition in Suffolk Superior Court to date, we have not attempted a detailed analysis of discretion at that level. Because this is the highest level trial court, such a study has obvious significance.

Our study concentrated on crime and criminal justice in Boston. Police and courts in other areas of the state, especially nonurban areas, may have had different experiences with the law, and Bartley-Fox may have had a different impact on crime patterns in other Massachusetts jurisdictions. Exploring such potential differences is an important task for additional research on Bartley-Fox.

Finally, any further research on Bartley-Fox should certainly examine trends in suicide and gun accident rates. One important objective of any gun control measure is to reduce noncriminal gun-related incidents. During 1969-1974, an average of 12.5 accidental deaths and 137.0 suicides involving firearms took place in Massachusetts each year.[137] We have been unable to explore the impact of Bartley-Fox on these phenomena because post-Bartley-Fox data is, as of this writing, unavailable.

C. Some Broader Implications of This Research

Our study has been limited to analyzing concrete information about a particular law in one particular jurisdiction. Reviewing the broad debates on deterrence, mandatory sentencing and gun control is largely beyond the scope of this article. Nonetheless, our findings have significance for each of these larger topics, and it seems appropriate to highlight briefly these implications in the form of concluding remarks.

1. Deterrence Research

We know relatively little¾and at least one important researcher in this field has despaired of ever knowing much more[138]¾about how deterrence information is received and factored into any prospective offender's own "deterrence calculus." The sentencing stage is the very last stage in the detection, apprehension and sanctioning process. Whether a radical [Page 322] change in sentencing behavior will produce an impact on the attitudes of prospective offenders is unclear.[139]

Many students of deterrence have rejected the certainty of some punishment as a measure of deterrence and have instead focused upon the certainty of relatively significant punishment, particularly imprisonment.[140] From this perspective the contribution of the Bartley-Fox amendment to deterring the illegal carrying of firearms is significant, Although the overall conviction/bindover rate stayed about the same after the amendment took effect, the proportion of cases resulting in prison terms of a year or more increased many times over. Of course, the mandatory minimum sentence did not ensure that all those arrested for the offense would be sentenced to a year in prison because it did not ensure that arrests would always be based on evidence sufficient to sustain a conviction.[141] A high proportion of Bartley-Fox cases foundered on evidentiary shoals. The evidentiary difficulties involved in winning a conviction on the merits must, therefore, be borne in mind in examining the arrest/conviction disparity.

We have learned from this study that a high degree of publicity about significant penalties can increase citizen compliance with the law. Not only did the number of permits issued increase dramatically, but the carrying of firearms by those still lacking permits appears to have declined. Indeed, the publicity surrounding the Bartley-Fox amendment often overstated the law's scope and thereby increased compliance with related requirements as well, even though the related requirements did not involve the mandatory minimum sentence.

2. Mandatory Sentencing Proposals

In addition to the above points on deterrence, several other findings from our study bear directly on issues in sentencing policy. First, by [Page 323] increasing the rate at which prison sentences are imposed, a provision for mandatory sentencing taxes the resources of both courts and prisons. Bartley-Fox produced quantum leap in the rate at which defendants convicted in the lower courts exercised their right to a de novo proceeding in superior court. Accommodating this change demands additional resources not only from judges and courts, but from police and civilian witnesses, specialized ballistics services, district attorneys' offices and legal services as well.[142] In the meantime, the period between arrest and final imposition of some penalty will be lengthened by an average of well over one year. Such delays in closing cases, even if sentences are ultimately served, undermine whatever deterrent effect may be created by extensive publicity of the law's impact. If the threat of a severe penalty is to be believed by the public, resources necessary for speedy prosecution and sentencing must be made available.[143] Institutional pressures created by provisions for mandatory sentencing extend beyond courts. Legislative restructuring of penalties for an offense taxes prison resources as well. In Massachusetts, the state correctional system is already operating beyond capacity, as are many county institutions. Additional space must be made available if the burdens created by Bartley-Fox sentences continue.[144]

The second point emerging from the study that is particularly relevant to mandatory sentencing relates to judicial application of the law. Certainly many Massachusetts judges do not like this law; by sharply curtailing their sentencing discretion, Bartley-Fox expresses legislative distrust of the manner in which judges have exercised that discretion in the past.[145] Nonetheless, judges have enforced and applied the law. Although judges seemed more than willing to entertain legitimate defenses, in the absence of plausible defenses, defendants were almost in variably convicted and sentenced in accordance with the mandatory minimum.[146] [Page 324] This judicial acquiescence, albeit reluctant, in Bartley-Fox's penalty scheme suggests that other mandatory sentencing statutes, if carefully drawn and adequately publicized, will be properly applied. At the very least, Massachusetts' experience under Bartley-Fox undercuts the argument advanced by opponents of the bill that judges automatically short circuit statutes that encroach upon their sentencing domain.

Third, the more serious the offense one is seeking to deter, the more likely it is that significant prison sentences are already imposed. We found that nearly all those convicted of firearm robbery or firearm homicide received terms of imprisonment, as did many of those convicted of the most serious assault. A mandatory minimum adds little to the certainty of imprisonment for these crimes, nor is it likely that such a minimum would appreciably alter the severity of the punishment imposed.147 However, mandatory sentencing rules might increase the likelihood that prison sentences will be imposed for less serious offenses¾e.g., assaults with a dangerous weapon-because many defendants currently do not receive prison sentences for such crimes. Whether such penalties should invariably be imposed is a separate question.

3. Gun Control Strategies

If gun crime, rather than guns alone, is the evil at which gun control measures are directed, then laws similar to Bartley-Fox fall,wide of their mark. Bartley-Fox affects prosecutions for gun crime only indirectly and catches many in its web whose only offense was illegally carrying a firearm, rather than using the firearm for assault, robbery, or homicide. Our 1975 six-month sample is illustrative. Thirty-one defendants had used guns in assaults and were convicted or bound over on Bartley-Fox charges by the lower court. Even without Bartley-Fox, a number of these would certainly have received prison sentences. However, forty-seven other defendants, charged with nothing more than a Bartley-Fox violation, were also bound over or sentenced to a year in prison. If [Page 325] Bartley-Fox is directed at gun crime, therefore, the law is drastically over inclusive. At the same time, Bartley-Fox has not been an appropriate charge in the vast majority of prosecutions for the criminal use of firearms. On both counts, then, legislation creating a crime-specific mandate would obviously be more appropriate to a direct attack on firearm crime.

One may argue, however, that an effective attack on gun crime must come before commission of the crime, by regulating the carrying¾and, at least through public perception, the possession¾of firearms. This is the central premise of Bartley-Fox's statutory scheme. Whether this indirect attack on gun crime had the desired effect is unclear. Our research on levels of gun crime before and after Bartley-Fox took effect produced mixed results. We detected no effect on the use of guns in robbery but did find a reduction in the proportionate use of guns in assaults and a resulting impact on the level of firearm homicides.[148]

The absence of an effect upon robbery might be explained by noting that a reduction in the casual carrying of firearms will primarily affect the use of guns in unpremeditated crimes. Robbery generally involves a greater degree of calculation and planning than does assault, which is usually a spur-of-the-moment crime.

Although our study of Bartley-Fox persuades us that its impact upon general gun crime was significant, the impact apparently did not extend to planned crimes. Yet the predatory crime of robbery by firearm is the prototype of "crime in the streets"¾the crime that Bartley-Fox was intended to prevent. We therefore conclude that remedies that attack gun crime by regulating only the possession, carrying, or use of a firearm, though effective in some respects, are far from a panacea and, without more, will not be sufficient to reduce premeditated. predatory crime. [Page 326]

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APPENDIX

FIGURE I
ISSUANCE OF F.I.D. CARDS IN MASSACHUSETTS
1968-1974/75

SOURCE: Department of Public Safety

[Page 327]

FIGURE II
ISSUANCE OF F.I.D. CARDS IN MASSACHUSETTS
1974-1975

SOURCE: Department of Public Safety

[Page 328]

FIGURE III
ISSUANCE OF NEW LICENSES TO CARRY HANDGUNS IN MASSACHUSETTS
1974-1975

SOURCE: Department of Public Safety

[Page 329]

FIGURE IV
BOSTON CRIME RATES, 1960-1974
(1960 = 100%)

SOURCE: Federal Bureau of Investigation, Crime in the United States 1960-1974 (annual)

[Page 330]

FIGURE V
MASSACHUSETTS CRIME RATES, 1960-1974
(1960 = 100%)

SOURCE: Federal Bureau of Investigation, Crime in the United States 1960-1974 (annual)

[Page 331]

FIGURE VI
ROBBERY IN BOSTON, 1972-1976

SOURCE: Boston Police Department's monthly submission to the F.B.I.'s Uniform Crime Reports.

FIGURE VII
PERCENT OF WEAPON USE IN ROBBERY
IN BOSTON, 1972-1976

SOURCE: Boston Police Department's monthly submission to the F.B.I.'s Uniform Crime Reports.

[Page 332]

FIGURE VIII
AGGRAVATED A