Guns and Drugs

Abstract

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession. The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area - possessory gun crime - that receives much less criticism. Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

Keywords: criminal law, criminal procedure, War on Drugs, guns, ACCA, mass incarceration, mandatory minimum sentencing, possession crimes, stop and frisk, policing, race, gun control, Second Amendment, gun violence, violent crime

JEL Classification: K14, K42