Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization

37 Pages Posted: 31 Oct 2022

See all articles by Mugambi Jouet

Mugambi Jouet

University of Southern California Gould School of Law

Date Written: October 22, 2022

Abstract

Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms. Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control. The United States has gravitated toward a peculiar social model combining extremely loose regulations on guns and extremely harsh penalties on gun crime. If someone possesses a gun illegally or carries one when committing another crime, such as burglary or drug dealing, draconian mandatory minimums can apply. These circumstances exemplify root causes of mass incarceration: overreliance on prisons in reaction to social problems and unforgiving punishments for those labeled as “violent” criminals. Contrary to widespread misconceptions, mass incarceration does not primarily stem from locking up petty, nonviolent offenders caught in the “War on Drugs.” Most prisoners are serving time for violent offenses. Steep sentence enhancements for crimes involving guns illustrate how American justice revolves around counterproductive, costly practices that disproportionately impact minorities.

This multidisciplinary Article envisions future reforms with the capacity to transcend America’s bitter polarization. A precondition to change is not for conservatives and liberals to wholeheartedly agree on issues like systemic racism or the right to bear arms. Rather, possibilities for penal reform are likelier when each side can come to the negotiating table for its own reasons. A paradigm shift in conservative America may prove especially indispensable, as Republicans tend to be more supportive of harsh punishments and Democrats are unlikely to achieve reform nationwide on party-line votes. This shift has already occurred to an extent given the rise of penal reform in red states. But both conservatives and liberals have failed to significantly reduce mass incarceration by recurrently excluding “violent” offenders from reform initiatives.

The Article explores how conservatives and liberals could gradually converge toward sentencing reform on gun crime. This could ultimately have a ripple effect on American sentencing norms, leading them closer to those of Western democracies with more effective and humane penal systems. Such bipartisanship is less elusive than it might seem. A rehabilitative approach toward gun crime fits with the evolution of American conservatism, which believes that guns should not be vilified since they are part of the nation’s identity. Similarly, the rehabilitation of people convicted of gun crime is consistent with cornerstones of modern American liberalism, namely stricter gun control and opposition to mass incarceration as an unjust, racist system. As opposite sides will probably retain much of their worldview even if their perspectives evolve to a degree, new ways of thinking could help bring reformers together. These social transformations cannot be predicted but should be theorized.

Keywords: guns, gun violence, mass incarceration, criminal punishment, criminal law, criminal procedure, criminology, criminal justice, criminal justice reform, penal reform, comparative law, multidisciplinary research, social polarization

Suggested Citation

Jouet, Mugambi, Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization (October 22, 2022). Arizona State Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4255881

Mugambi Jouet (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Blvd.
Los Angeles, CA 90089
United States

HOME PAGE: http://https://gould.usc.edu/faculty/?id=78647

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