Robert, two points.
1. You’re exactly right about these non-prosecution decisions. In my last five years at the Justice Department, I ran the satellite U.S. attorney’s office that covers the six upstate counties (three on each side of the Hudson) just north of the Bronx. (The mothership of the Southern District of New York, where I spent most of my government career, is down at Foley Square and handles the Bronx and Manhattan.) One of my responsibilities was to review investigative agency decisions to close cases without charges. About once a month, an ATF supervisor would call or visit me and go through several investigations the agency believed were not worth pursuing. Typically, many of these cases involved attempted illegal gun purchases. Though memory fades, so I may be forgetting one or two disagreements, I’m pretty sure I concurred in all ATF’s recommendations. Almost always, these infractions involved sympathetic actors who almost certainly did not know they were ineligible to own guns.
A couple of noteworthy things about this. First, the way this non-prosecution issue is being framed, people could get the misimpression that gun offenses were not taken seriously. Quite the opposite. You can only take so many cases — I supervised 10 to 15 lawyers with heavy caseloads that featured terrorism, drugs, racketeering, various types of fraud, etc. In the scheme of things, most attempted illegal purchases are not weighty offenses. When I said Senator Cruz was right to highlight the paltry number of prosecutions (44 out of 15,000), I was careful to note that this is unreasonable only because the government has simultaneously turned up the heat on gun owners who have done nothing wrong – if you’re not going to go after the guilty, it makes no sense to harass the innocent.
But that is not to suggest that most attempted illegal-purchase cases are worrisome. Let’s say a person fully recovered from some long-ago mental illness attempts to buy a gun and is unsuccessful; an agent interviews him, makes a responsible determination that the guy, besides enduring the anxiety of knowing he is under federal investigation, now understands he’s not eligible and won’t try again; and a reasonable period of time goes by during which the guy, in fact, does not try again. That is not a case worth expending resources on when you are actively prosecuting a slew of serious gun crimes involving real criminals shooting guns, obliterating serial numbers, using guns in connection with drug and violent crimes, etc. (The same sort of resource allocation leads federal prosecutors to focus on drug-distribution crimes and basically ignore drug-possession crimes — the latter are not nearly as serious and can easily be handled by the state.)
There is also the significant matter of the jury pool. Precisely because these attempted illegal-purchase cases often involve sympathetic would-be defendants, it is not unlikely that a large number of them would go to trial (rather than plead guilty) if indicted. Attitudes about guns in Westchester, Rockland, Putnam, Orange, Duchess and Sullivan Counties, where most jurors serving in upstate cases lived, were markedly different from attitudes in Manhattan and the Bronx, where most jurors who serve in the Foley Square courthouses live. It is highly, highly likely that a sympathetic defendant in a gun case involving a non-transaction — i.e., no one has actually obtained a firearm, much less used one — will be acquitted in upstate New York. Under those circumstances, a Justice Department that expended resources on such cases, and therefore denied those resources to more worthy cases, would be doing a disservice to the public. And if such charging decisions were made due to political passion, that would be a perversion of justice.
2. Getting back to Senator Cruz, I’ve just heard a sound bite in which he seems to walk back the constitutionally problematic proposal that Congress direct the Justice Department to indict these cases involving attempted illegal purchases of firearms. Instead, he says he will sponsor legislation creating a Justice Department “task force” dedicated to prosecuting such cases. Respectfully, I think this is not a good idea.
The problem Senator Cruz has rightly homed in on is the baseless harassment of innocent gun owners. The small number of prosecutions for illegal purchases is worth stressing because it highlights the injustice being done to the innocent, whose rights the federal government ought to be protecting. Far from curing the injustice, it would only make things worse to both start prosecuting people who really shouldn’t be charged and waste taxpayer money on yet another federal “task force.” As I contended in the previous post, starving the beast is a better approach.