Can the ‘War’ on Gun Violence Learn From the Mistakes of the War on Drugs?

For decades, attorneys, activists, academics, and even judges have openly critiqued the War on Drugs and its associated harsh enforcement policies such as mandatory minimum sentencing. As states slowly started to legalize and decriminalize certain drugs, authorities have moved to less punitive approaches to address the social costs of addiction.

That’s a lesson worth applying to current strategies addressing the epidemic of gun violence, writes Benjamin Levin, an Associate Professor of Law at the University of Colorado Law School.

In a paper first published in the Fordham Law Review and posted online last month, Levin argued that the “widespread recognition” of the failure of aggressive drug enforcement “has ushered in a moment of great possibility for criminal justice reformers.”

“Criminal law may have an important role to play in addressing gun violence [but] the criminal statutes that regulate gun possession risk reproducing the same systemic pathologies, collateral costs, and distributional inequities that have defined the War on Drugs,” he warned.

The same concerns about police and prosecutorial power directed at individuals caught with illicit drugs, along with worries about the social and economic costs of mass incarceration, are relevant to the questionable and often racially inequitable strategies used to apply to gun possession in at-risk neighborhoods, such as stop-and-frisk policies, Levin wrote.

“Appreciating the broader applicability of the drug war’s critiques should lead to an examination of flaws in the criminal justice system that lessen its capacity for solving social problems,” the paper said.

Guns, Drugs and Race

While critics of the War on Drugs’ disparate racial impact have offered up powerful statistical evidence of the racial breakdown of drug arrests and charges, Levin said scholars generally have not focused on the racial breakdown of weapons arrests and charges with the same level of scrutiny.

“As of 1995, nationwide FBI crime reports showed that weapons arrest rates were five time greater for Blacks than white,” said the paper, which was first published in 2015.

“In 2000, 54 percent of the state court defendants convicted for weapons crimes were black, as compared to 44 percent white.

This has exacerbated mass incarceration, while increasing the disproportional racial makeup of prison populations.

The relationship between anti-gun and anti-drug initiatives becomes clear when looking at felony convictions. Just as the war on drugs brought more low-income people of color into the criminal system, aggressive policies on illegal gun possession have had a disparate impact on Black and brown populations, the paper said.

“The War on Drugs has helped to drive home the significance of the race-based costs of widespread criminalization and criminal enforcement,” Levin writes, and the same perspective should inform enforcement of measures to curb the gun epidemic.

“Gun possession has remained a target at the forefront of the push to criminalize dangerous markets and dangerous behavior,” Levin wrote. “My aim is not to suggest an apples-to-apples comparison between guns and drugs. Rather, it is to suggest that the legal treatment of gun possession is embedded in the same structure of criminal law and criminal law enforcement that has been critiqued in the drug context.”

Stop-and-frisk policies for example allowed for an “aggressive and interventionist” stance against the war on drugs that many have tried to see as the “cure” for gun violence.

“Addressing these critiques may require a reshaping of both sentencing and enforcement regimes in order to confront and mitigate the distributional and collateral consequences of criminalization,” Levin said.

How Should We Regulate ‘Dangerous Products’?

Levin acknowledges there are key differences in enforcing laws related to guns and drugs.

“The legal treatment of guns and drugs should be rooted in a discussion of the best way to regulate markets in dangerous products, but it is important to recognize that all dangerous markets are not the same,” he wrote.

Moreover, efforts to control gun use and possession are complicated by the “polarized” debate over gun rights with gun owners claiming rights under the Second Amendment and gun control advocates calling for harsher gun laws, Levin conceded.

But he asks, “how might we imagine a legal architecture for gun regulation that avoids the pitfalls of the War on Drugs?”

Some jurisdictions are already applying greater discretion to the challenge, Levin wrote.

For example, Project Exile in Baltimore targets previously convicted felons who possess guns and/or armed persons involved in drug-related or violent crimes. Police Commissioner Michael Harrison credits Project Exile, which applies stiff punishment to crimes committed with guns, for helping to quell the city’s surge in gun violence in 2020.

“The message is simple,” he said recently. “If violent crime is the life you choose, we will be certain that prison is the price you pay.”

But at the same time, Baltimore policies that involve community participation and violence intervention workers offer young people in violence-prone neighborhoods opportunities to give up their guns and avoid harsh penalties that entrap them in the justice system.

The same approach is now used on a wider scale to reduce criminal enforcement of drug laws, and offers lessons that can be applied to America’s gun problem—specifically by ending what Levin calls the “overreliance” of the justice system on criminal laws to regulate gun possession.

“If we are to learn from the War on Drugs and avoid repeating past mistakes, it means internalizing the critiques of criminal law, not only in the drug context but in other ‘hard cases,’” Levin concluded.

He warned gun control advocates against taking the kind of rigid stands against gun ownership that backfired when they were applied to drug possession.

“I hope to sound a note of caution, to suggest that activists, attorneys, scholars, and legislators should tread lightly in uncritically embracing criminal solutions lest they re-invite the collateral consequences of the last criminal war.”

Benjamin Levin is an Associate Professor of Law at the University of Colorado Law School. Levin studies criminal law and policy, while researching and examining criminal justice reform and its relationship to other movements for social and economic change. Prior to joining the Colorado Law faculty, Levin served as a Climenko Fellow and Lecturer on Law at Harvard Law School.

The full paper can be accessed here.