Boston University Law Review
57 (1977): 96
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 I
JAMES A. BEHA, II *
TABLE OF CONTENTS¾PART I
I. INTRODUCTION ................................................................................... 98
II. MASSACHUSETTS GUN LEGISLATION AND THE
INTRODUCTION OF BARTLEY-FOX ...................................................101
A. Massachusetts Regulation of the Ownership,
Possession and Carrying of Firearms .............................................101
1. The Statutory Scheme ........................................................101
[Page 97]
2. The Offense of Illegally Carrying a Firearm......................104
B. The Implementation of Bartley-Fox and
Its Constitutional Challenge ............................................................106
III. THE COURT STUDY: DATA COLLECTION AND ANALYSIS ...111
IV. THE COURT STUDY: FINDINGS AND INTERPRETATIONS .....115
A. The Relationship Between Firearms Charges and the
Prosecution of Gun-Related Crime ..................................................115
B. The Court System's Response to Bartley-Fox ..............................119
V. CONCLUSION TO PART ONE ...........................................................145
Part II, to appear in the next issue, will address the following: http://www.saf.org/LawReviews/Beha1b.html
I. THE IMPACT OF THE LAW ON THE POSSESSION AND
CARRYING OF FIREARMS
A. Introductory Notes
B. Available Indicators of the Impact of Bartley-Fox on
Compliance, Circulation, Availability and Intervention
1. Compliance with Existing Permit and License Requirements
2. Reduction in the Number of Firearms in General Circulation
3. Reduction in Firearms Directly Available for Criminal Activity
4. Bartley-Fox and the Exercise of Discretion by Police:
Possible Changes in Strategies of Intervention
II. BARTLEY-FOX AND FIREARM CRIME
A. The Immediate Context: Levels of Crime in Boston
B. Recent Trends in Firearm Crime
C. Concluding Notes on the Impact of Bartley-Fox
III. SUMMARY AND IMPLICATIONS
A. Summary
1.Strengths and Weaknesses of the Statute as Drafted
2.Enforcement of the Law
[Page 98]
3. Impact of the Law Outside the Criminal justice System
4. The Limits of This Study
B. Suggestions for Additional Research on Bartley-Fox
C. Some Broader Implications of This Research
1. Deterrence Research
2. Mandatory Sentencing Proposals
3. Gun Control Strategies
I. INTRODUCTION
In July 1974, Massachusetts adopted an amendment to a long-standing law prohibiting the carrying of firearms
by individuals lacking the appropriate permit.[1] In addition to strengthening that law's criminal penalties, the
"Bartley-Fox" amendment¾after sponsors David Bartley, then Speaker
of the Massachusetts House, and retired judge J. John Fox¾introduced a mandatory
minimum sentence for every defendant convicted under this law. Unlike many other "mandatory" sentencing
laws, Bartley-Fox explicitly prohibited the courts from interposing informal dispositions that might short-circuit
the imposition of the new penalty by requiring that the minimum sentence of one year in prison be imposed and served
without suspension, parole, or furlough. The Bartley-Fox law took effect on April 1, 1975, following an intensive
publicity campaign which emphasized that punishment under this law would be swift and certain, that once caught
nobody can get you out."
Although the law drew only a moderate amount of public comment when first passed by the legislature, it has
since attracted a great deal of local and national attention. The law simultaneously presents an experiment in
mandatory sentencing and the application of one strategy for reducing firearm abuse without outlawing¾or
even licensing¾firearms themselves. Assessing Bartley-Fox's impact has become
a regular port of call in debates on both topics.
When the mandatory sentence took effect, the Harvard Center for Criminal justice started a short-term study
of the response of the criminal justice system to the illegal carrying of firearms and to the use of firearms in
crime.[2] This study increasingly focused on Bartley-Fox and, particularly, on the question of how the mandatory
sentence would affect the exercise of [Page 99] discretion by police, prosecutors and the courts. We also felt
compelled by the national interest in this new law to develop what information we could about Its impact both upon
the illegal carrying of firearms and upon the use of firearms in the commission of violent crime. This two-part
article presents what we have been able to learn over the past eighteen months about these topics.
The study was grounded upon three different sets of "samples" of information about this law. First,
we drew together those 1975 statistics that might reflect the law's impact on the illegal carrying or possession
of firearms. These included arrest summaries; ballistics unit records; statistics from the Department of Public
Safety on the issuance of various firearm permits; survey data; and the results of interviews with attorneys, criminal
justice officials and offenders. Second, in trying to estimate the impact of the law on the use of firearms in
violent crime, we worked intensively with the Boston Police Department's monthly incident reports covering three
years before as well as two full years after the law's effective date of April. 1, 1975, and with comparable state
and national data to the limited degree available. And third, in our effort to understand the response of the criminal
justice system to the law, we followed through December 1976 all prosecutions for a firearm crime that entered
the Boston lower court system between April and September 1975, including 203 cases that involved a Bartley-Fox
charge,[3] as well as a parallel sample of cases brought during the same six months in 1974¾and,
therefore, before the law took effect.[4] In combining these various sources, the study continued to work toward
two significantly different aims: (1) to describe the response of the criminal justice system to the introduction
- of a mandatory minimum penalty¾an institutional
analysis¾and (2) to estimate any effect the law may have had on compliance with
the licensing law, on the carrying of firearms and on the use of firearms in the commission of violent crime¾an impact analysis. Part One of this article addresses the first of these topics;
the second topic, and our more general conclusions, will be included in Part Two.
Our study concentrated almost entirely on the city of Boston. The conclusions drawn, therefore, may not be a
completely accurate representa- [Page 100] tion of the state's experience with Bartley-Fox. Nonetheless, more than
half of the Bartley-Fox cases brought during the first six months the law was in effect were brought in the Boston
courts. And the most serious violent crime in Massachusetts is disproportionately concentrated in Boston, the state's
largest city.[5] Thus, conclusions drawn from the Boston experience do represent the results at the single
most important test site for a new law addressed to predatory violent crime.
It is worth pointing out, however, that there is no guarantee that even the limited set of effects the law has
had so far in Boston would be repeated wherever a similar statute is enacted. Massachusetts and the city of Boston
have historically had low levels of firearm ownership, as well as low rates of firearm use in crime. Massachusetts'
version of the trial de novo system,[6] moreover, creates a highly unusual set of pressures and opportunities for
prosecutors, defendants and judges. For example, lower court judges may come to believe that superior court juries
will take them off the hook if they hold over a sympathetic defendant. Defendants, on the other hand, have an opportunity
to hear the bulk of the prosecution's case in the lower court, allowing them an unusually informed choice as to
whether they should take a certain line of defense, seek a plea bargain, or¾and
this appears to happen in quite a few cases¾take advantage of a second opportunity
to default and flee. This is not to say that the knowledge gained from this study must be restricted to Massachusetts'
particular circumstances, but rather that, in considering the enactment of mandatory sentencing statutes, legislators
must consider the character of the offense being punished, the circumstances of individuals likely to commit that
offense, and the context within which apprehension, prosecution and sentencing must occur.
The overarching constraints on the interpretation of this study are themselves products of the short time period
within which our research effort was conducted. Many of the cases that we began to follow in the fall of 1975¾including some initiated as early as April 1974¾are
still awaiting final resolution in the Suffolk Superior Court. Several of the measures of impact that we have considered
are sufficiently volatile that the significance of patterns observed during the first year or two will not be definitively
settled without several years' additional data. Conversely, effects that were present during this initial period
may not be repeated as public awareness of the law dissipates, or as the threat that "nobody can get you out"
appears to lose credibility. [Page 101]
With these caveats in mind, section 11 sets the stage for the study by describing the Massachusetts system for
regulating firearms, the character of the change in that system introduced by the Bartley-Fox amendment, and the
factors involved in demonstrating that a defendant has violated the statute. That section also describes the process
of implementing Bartley-Fox and the Supreme Judicial Court's decision sustaining the constitutionality of the mandatory
minimum sentence. Section III presents the context and outlines the purposes of our study of gun-related prosecutions
brought in the Boston courts and describes the manner in which we selected our court samples and the sources used
in developing the case histories. Section IV, the final section of Part One, draws on the court study to develop
answers to a series of questions about the law and the criminal justice system. First, we discuss the extent to
which Bartley-Fox contributes to the prosecution of violent crime; then we explore the law's effect upon the ways
in which criminal justice officials¾police, prosecutors and judges¾carry
out their functions, with close attention to evaluating any evidence that such officials have systematically attempted
to evade the mandatory sentence.
The second part of this article, to be published in the next issue, will examine the impact of Bartley-Fox upon
citizen compliance with licensing laws, the general level of firearms in circulation, the casual availability of
firearms for criminal activity, and crime rates. The next installment will also examine in somewhat greater depth
the implications of, and limitations upon, this study and will suggest additional topics that might be studied
in the future.
II. MASSACHUSETTS GUN LEGISLATION AND THE INTRODUCTION OF BARTLEY-FOX
A. Massachusetts' Regulation of the Ownership, Possession and Carrying of Firearms[7]
1. The Statutory Scheme
Statutes requiring individuals to¾obtain some form of permit to carry a firearm
have been in effect in Massachusetts since 1906, when carrying a loaded pistol or revolver without a license was
first prohibited.[8] In 1968, the [Page 102] permit requirement was extended to ownership or possession of any
gun. In their present form, the laws concerned with the ownership, possession and carrying of Firearms constitute
a two-tiered system of identification and licensing. Most citizens may obtain a "firearm identification (FID)
card" as a matter of right;[9] this card authorizes the holder to own or possess a handgun and to own, possess
and carry a long gun. In order to carry a handgun,[10] however, the citizen must obtain a separate license,
which is to be issued by the local authority only upon a finding that the applicant is a "suitable person"
and that-he has "good reason to fear injury," or has "any other proper purpose."[11] Finally,
for a citizen to purchase a handgun, he must have either a license to carry, or a special permit[12] and
an FID card.[13] It is this " point of purchase" restraint, introduced in 1926, that has distinguished
the Massachusetts system of regulating handguns from that of most other states.[14]
Prior to the passage of Bartley-Fox, the penalty system had distinguished only between the improper ownership
or possession of any firearm and the improper carrying of a handgun. 'The former offense was punished by a maximum
sentence of one year's imprisonment or a $500 fine[15]¾first set when the FID
card requirement was introduced in 1968. The penalty for unlawfully carrying a handgun, which paralleled
the penalty for carrying certain other dangerous weapons, was a sentence ranging from not less than six months
in a jail or house of correction to not more than five years in the state prison. However, the statute also provided
that, "if the court finds that the defendant has not been previously convicted of a felony, he may be punished
by a fine of not more than fifty dollars or by imprisonment for not more than two and one half years in a jail
or house of correction."[16]
Additionally, after 1968, repeat offenders under these provisions were subject to more severe penalties,
and the law provided that their sentences" shall not be suspended nor shall any person so sentenced be eligible
for [Page 103] parole or receive any deductions from his sentence for good conduct."[17] Thus, the penalty
structure for carrying offenses long had something of a mandatory flavor¾although
courts might still suspend such sentences (except in the case of those found to be repeat offenders), place the
case "on file," or continue the case "without a finding."
The Bartley-Fox amendment did not alter the penalties for improper ownership or possession of a firearm; it
did, however, change the handling of the carrying offense in a number of respects. First, the provisions for firearms
were separated from the provisions for other dangerous weapons. Second, the minimum sentence for illegally carrying
a firearm was increased from six months to one year.[18] Third, the amendment extended the carrying offense category
to encompass the carrying of a long gun without having an FID card-a particularly sharp shift in the law since
the carrying of a long gun had not previously been distinguished from its mere possession, for which the maximum
penalty was one year.[19] Finally, the Bartley-Fox bill also provided that, for all those charged under the
statute,
[t]he sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall
any person convicted under this subsection (a) be eligible for probation, parole, or furlough or receive
any reduction from his sentence for good conduct until he shall have served one year of such sentence. Prosecutions
commenced under this section shall neither be continued without a finding nor placed on file.[20]
In this manner, the drafters of the law attempted to ensure that this minimum sentence would be imposed upon,
and served by, all defendants whose cases did not result in dismissals or acquittals. It is the last sentence of
the provision that, by closing off routes of informal disposition, makes this law different from most statutes
"mandating" particular penalties.[21]
Despite much publicity to the contrary, the amended statute does not formally prohibit plea bargaining of a
carrying charge; thus, a defendant's plea to some other charge might still be coupled with dismissal of the carrying
complaint.[22] Furthermore, in contrast to repeated arguments by sponsors of Bartley-Fox, the law does not preclude
the dismissal of cases or a prosecutor's motion to dismiss. Many prosecutors, however, appear to have accepted
the sponsors' position as fact. [Page 104]
The scope of the law is further limited by the fact that, although the law's sponsors emphasized its importance
as a message to juvenile offenders, by its terms it does not intrude upon the juvenile courts and the juvenile
justice process.[23] Only if the juvenile court judge concludes that the offender should be tried as an adult¾an infrequent decision, especially when a major crime of violence is not alleged¾does the mandatory sentence come into play.[24]
2. The Offense of Illegally Carrying a Firearm
Having outlined the statutory scheme for regulating firearms, it is important to look closely at the offense
of illegally carrying a firearm¾what it involves and what kinds of gun-connected
behavior are not covered by the amended law. In order to establish that a defendant has violated the statute, the
prosecution must prove a series of points about the weapon, the defendant's behavior and the defendant's circumstances.
It turns out that these may sometimes be difficult or impossible to establish, even though the defendant clearly
did participate in an incident involving what the victim or the arresting officer had reason to believe was a gun.
Massachusetts law defines a firearm as "a pistol,, revolver, or other weapon of any description loaded
or unloaded, from which a shot or bullet can be discharged and of which the length of barrel is less than sixteen
inches or eighteen inches in the case of a shotgun."[25] The courts have consistently read this definition
as requiring clear evidence that the weapon involved actually is capable, at least after minor adjustment, of firing
shots or bullets.[26]
The result of the firing capacity test has been that a conviction under these statutes almost invariably requires
introducing the weapon into evidence. Indeed, clerks in the courts we studied will not issue a complaint unless
the weapon has been seized by the police or some unusual circumstance is present, such as an admission by the defendant
or evidence of firing. Even when the weapon has been seized and a complaint has issued, a ballistics examination
may subsequently establish that the weapon does not in fact meet the statutory requirement. This does not mean,
however, that a ballistics report or expert testimony is absolutely essential for conviction; although the absence
of such evidence severely undermines the prosecution's case as a matter of law, the jury may draw inferences from
observing the weapon.[27] [Page 105]
The law's mandatory penalties only apply to an individual who, without authorization, "carries on his person,
or carries on his person or under his control in a vehicle," a handgun, rifle, or shotgun.[28] Such a carrying
occurs only beyond the confines of an individual's home or place of business and must involve something more than
the momentary handling or use of a weapon. For example, the Supreme judicial Court of Massachusetts has held that
"the temporary possession of the revolver [while playing Russian roulette] is not a carrying of a firearm
on the person within the meaning of G, L. ch. 269, § 10, as amended. The idea conveyed by the statute is that
of movement . . . ."[29] But, even though mere possession is not sufficient to establish the carrying of a
weapon, possession is nonetheless essential. Thus, in an armed robbery in which one defendant holds a gun while
the other takes the valuables, only the individual with the weapon is chargeable with a firearms violation, although
both have committed an armed robbery.
In Commonwealth v. Boone,[30] the SJC predicated the possibility of "control" on a requirement
that the defendant had known about the weapon's presence. The court stated that "it would not be a reasonable
interpretation that a weapon is within the control of someone who does not know that he has it."[31] Subsequently,
the court broadened the scope of the knowledge requirement by interpreting "§ 10(a) as requiring, as
a necessary element of the offense, proof that the accused knew that he was carrying a firearm."[32] As presently
interpreted, though, there is no requirement that the offender know about the licensing law.[33]
Proving that a weapon was under the control of the defendant in a vehicle likewise involves several steps. The
finder of fact must be able to infer that the defendant knew about the weapon.[34] However, merely placing a defendant
with such knowledge in a car with the weapon does not adequately link the defendant to the weapon. Although it
is possible that several occupants of a car all had control over weapons therein,[35] it will often be the case
that knowledge and control will be provable only for some¾and occasionally for
none¾of the occupants.[36] [Page 106]
Handguns, rifles, shotguns and machine guns may be carried by those who do have the proper authorization. There
are also a series of exemptions in the statute for, e.g., new residents, duly authorized law enforcement
personnel and historical societies.[37] The defendant has the burden of establishing either the existence of authorization[38]
or that he is covered by an exemption.
B. The Implementation of Bartley-Fox and Its Constitutional Challenge[39]
The structure of the Bartley-Fox amendment grew out of the belief of retired judge J. John Fox that no person
could have a legitimate reason for carrying a firearm away from his home or place of business if that person had
failed to obtain in advance the proper authorization for such carrying. Fox explicitly assumed that people who
can and do obtain licenses-whom he calls the "white hats"-are not the people who commit gun-related crimes.
Conversely, Fox felt that those individuals who are more likely to commit such crimes¾the
"black hats"¾or those persons who, while not planning a crime, are
susceptible to gun use¾the "brown hats"¾would
be deterred from casual carrying of firearms in the face of a stiffer penalty for unauthorized carrying and that
this would result in a reduction in street crime.[40]
Judge Fox reports that he had lobbied for such penalties for many years but did not approach then-Speaker of
the House David Bartley with his ideas until the spring of 1974. Bartley reports that he found Fox's "legitimate
purpose" argument convincing and that they both agreed that more expansive legislative attacks on the gun¾crime problem, such as a complete ban on handguns, were not politically feasible.[41]
Bartley's research staff set to work drafting a statute to incorporate these ideas.[42] The resulting bill was
[Page 107] introduced in the House on June 3, 1974, by Speaker Bartley. The bill was reviewed by the Committee
on Public Safety, and a revised version was favorably reported out to the House, which "engrossed" the
bill without debate ten days after its introduction.[43] The bill was subsequently read in the Senate and engrossed
there after some debate. The House enacted the law on July 1, 1974, and the Senate followed suit. After some procedural
wrangling between Governor Francis Sargent and the legislature, the Governor signed the bill on July 30, 1974.[44]
Some observers have argued that the bill's speedy initial passage resulted from the desire of some legislators
to stymie more expansive gun control legislation. This is doubtless an accurate assessment of the motives of some
[Page 108] members of the General Court, but most legislators and lobbyists thought that legislative passage of
more expansive gun control measures was unlikely in any case. The critical factor in the passage of Bartley-Fox
seems to have been the support of the Speaker; his sponsorship brought passage so rapidly that those who might
have opposed the legislation as insufficient, or as creating undesirable zones of discretion for criminal justice
officials, were never mobilized. Indeed, one member of the legislature's Black Caucus indicated after that group
had opposed the law at the reenactment stage that they would have vigorously opposed the law at the point of its
initial enactment had it not been pushed through the General Court before adequate reflection was possible.[45]
Also, those individuals who normally oppose gun control measures would have been hard pressed to attack a law that
addressed only the carrying and not the ownership of firearms, did not require the registering of guns, and punished
"gun crime, not gun owners." In fact, several local gun-owner groups became involved in the drafting
of the legislation.
Because Bartley-Fox was intended to alter radically the treatment of those found illegally carrying a firearm,
the law's sponsors considered it essential to conduct an intensive effort to inform and educate the public about
the penalty and about the credentials required in order to carry- a firearm legally. In fact, the effective date
of the law was postponed so that such an effort could be made.[46] The extensive advertising campaign, launched
in early 1975, consisted of both an "in-house" effort by the Speaker's office to generate media interest
in reporting on the law, and an outside effort by the Advertising Club of Greater Boston to solicit free space
or time for public service announcements.[47] [Page 109]
In general, the initial radio and television publicity spots gave an accurate description of the law. However,
almost all the printed information contained the inaccurate statement that the mandatory sentence covered the possession
as well as the carrying of firearms. This is hardly surprising since the pamphlet describing the law, prepared
by judge Fox and the Speaker's staff, itself asserted that "[t]he new gun law imposes a MANDATORY JAIL SENTENCE
FOR THE UNAUTHORIZED POSSESSION OR CARRYING OF A FIREARM (HANDGUN), RIFLE OR SHOTGUN." Newspaper articles,
which were inevitably based on the press kit, usually perpetuated the pamphlet's error and often added further
inaccuracies.[48]
The Bartley-Fox amendment's mandatory jail sentence survived attack on both federal and state constitutional
grounds in the companion cases of Commonwealth v. Jackson[49] and Commonwealth v. McQuoid,[50] decided
by the Supreme judicial Court on March 15, 1976. In Jackson, the defendant argued that the mandatory sentence
constituted cruel and unusual punishment under both the state and federal constitutions because: (1) it prevented
a court from relating the punishment imposed to the harm done to society and from taking into account the background
of the defendant; (2) no other public welfare offense[51] carried a mandatory penalty; and (3) the penalty seemed
excessive when compared to penalties for more serious offenses in Massachusetts, for similar offenses in Massachusetts
and for parallel offenses in other jurisdictions.[52] The SJC noted, however, that the legislature must be free
to experiment with ways of preventing crime, including statutes that prevent the gradation of punishment. The court
concluded that, in light of the rational inferences the legislature could draw about the connection between guns
and crime, the one-year mandatory minimum was not "so disproportionate to the magnitude of the crime as to
render the statute [Page 110] unconstitutional.[53] And the court found that the disparity between this sentence
and corresponding measures in other states was not so great as to demonstrate an unconstitutional exercise of legislative
power.[54]
The court also rejected the defendant's due process arguments, holding that however unwise the statute might
appear, it still met the "rational relationship" test[55] because the legislature may reasonably determine
that an inflexible rule is necessary to reduce the danger created by the unlicensed carrying of a firearm.[56]
Similarly, the court held in McQuoid that the equal protection clause was not offended by singling out this
offense, for the legislature, "in confronting a multitude of evils . . . . may address itself to the phase
of the problem most urgently requiring remedial action."[57]
Finally, Jackson argued that the statute violated the separation of powers arrangement set forth in article
30 of the Declaration of Rights of the Massachusetts Constitution.[58] He contended that the practices of granting
probation, filing cases and continuing cases without a finding were inherent judicial functions, which had existed
at common law, and were therefore insulated by article 30 from legislative revision or abrogation.[59] The court
responded that inherent judicial powers include only those that relate to the capacity of the judiciary to function
and that the ability to defer the imposition of sentence "is not necessary to the very existence of a court,
and, [Page 111] as such, is not an inherent power beyond statutory limitation."[60] The court reasoned that
to read suspension, probation, continuance and filing as inherent judicial powers would, in effect, deny the legislature
its power to define crimes and prescribe penalties, in violation of the principle of separation of powers.
III. THE COURT STUDY: DATA COLLECTION AND ANALYSIS
A major concern of those individuals assessing Bartley-Fox's likely impact upon crime and the criminal justice
system was the daily application of the law by police, prosecutors and judges. However sharp the teeth of the amended
law, they could be blunted by evasion within the police and court systems. But without accurate information about
prior police and court practice,[61] critics were at a loss to interpret the implications of the law; lacking objective
reports on a substantial sample of cases brought under the new law, their commentary had to be limited to visceral
reactions, fragmentary and perhaps misleading statistics, and anecdotes.
The Center's study began by recognizing the gaps in knowledge about earlier experience with the carrying and
licensing provisions and the need for careful documentation of the handling of Bartley-Fox cases. Although information
on some of these points could be developed in a variety of ways, we concluded that the best solution to these concerns
would be a study of firearm violation prosecutions commenced both before and after the law took effect and, more
broadly, a study of the relationship between prosecutions for firearm violations and those for gun-related crimes.[62]
The resulting study was primarily based upon data collected in the Boston courts¾the
eight lower courts and the Suffolk Superior Court.[63] The [Page 112] primary sources of data were two six-month
samples drawn for both 1974 and 1975 from the docket books of the Boston district courts and cross-checked
against Boston Police Department arrest records for completeness.[64] Dockets were examined for the period between
April 1 and October 31 of each year, and all complaints relating to the illegal use, possession, or carrying of
a firearm¾based on incidents occurring between April I and September 30¾were collected for the sample. Thus, all robberies, assaults, rapes and homicides
that allegedly involved a firearm are in the sample;[65] other crimes, such as drug offenses, are not included
unless a complaint for a firearms violation was also brought. In addition, the sample does not include any cases
that may have been originally filed in Suffolk Superior [Page 113] Court[66] juvenile offenses,[67] or cases in
which initial arrest warrants were still outstanding at final file review.[68] In sum, the 1975 sample encompassed
some 467 cases, compared with 615 cases in the 1974 sample.
Although the court records are adequate for identifying charges, dispositions and penalties, they lack the detail
and reliability necessary for complete analysis.[69] Thus, four supplemental data sources were utilized to double
check and fill in the gaps in the basic files.
(1) Police incident and arrest reports. The Boston Police Department central files provided some narrative
description of the incident and the suspect, the name of the arresting officer and a description of any firearms
seized. Some record existed for all but eleven cases in our 1975 sample.[70] These files were also used to obtain
supplemental information on selected 1974 cases.
(2) Probation interview records. Because the criminal and social background of those arrested for firearm
violations was a relevant variable in assessing the use of police and judicial discretion, we attempted, with the
permission of the Commissioner of Probation,[71] to examine each court's probation workups on 1974 and 1975 sample
defendants charged with illegally carrying or possessing a firearm. The presiding judges in five courts that handle
the bulk of these cases¾Boston Municipal, Roxbury, Dorchester, West Roxbury and
South Boston, with 213 of the 244 firearm violations in the 1975 sample¾agreed
to cooperate. The backgrounds of subsamples of [Page 114] 1974 defendants and the full sample of 1975 firearm violation
defendants were studied through probation records at the cooperating courts.
(3) Attorney follow-up. A critical question about the new law was the extent to which judges¾and,
in superior court, juries¾would release a defendant who would otherwise have
been convicted in order to avoid sentencing that person to a year in prison. We therefore attempted to contact
the attorney of record for each defendant in our 1975 sample who was charged with carrying a firearm and
released by the court. In the district courts, we were able to identify an attorney in fifty-one cases and obtained
interviews for thirty-eight cases. We were unable to obtain an interview with a located attorney in only five instances
but were unable to locate several other attorneys or their replacements on the case. We also contacted attorneys
in building our profiles of each 1975 possession prosecution and in developing other portions of our study.
(4) Arresting officer follow-up. As we went through the analysis of the 1975 cases, it became clear that
in two situations some contact with the arresting officer might provide important supplemental information: (1)
when there was no attorney to contact in a case in which supplemental information was required to explain a disposition
or why only possession and not carrying of a firearm was charged, and (2) when a defendant was charged with a gun-related
felony but not with illegally carrying a firearm, to explain why a carrying charge was not included. Through the
Boston Police Department, contacts of the first sort were made for twelve closed cases. We were unable to complete
a formal sample in response to the second question because too many 1975 gun-related cases remained open
throughout the study period, and we were firmly committed to our decision not to investigate any case prior to
its final disposition. We did, however, discuss this question with a number of police officers, court clerks and
prosecutors.
The comparative data in the samples and the more detailed supplemental information allow two different but converging
methods of analysis. In the first method, the patterns of case processing found in the 1974 and 1975 samples are
quantitatively described, with the data gathered in 1974 prior to the Bartley-Fox amendments illuminating the significance
of current practice by describing a baseline for expectations.[72] The second approach relies on the supplemental
data to measure the qualitative difference in case handling. Because the information available on each case differs¾possibly in a nonrandom fashion¾this method is used
selectively and the extent of missing data is noted where appropriate.[73] Because the criminal records and many
attorney interviews require confidentiality, no information is given in [Page 115] the analysis that might lead
to the identification of specific cases, defendants, or judges.
IV. THE COURT STUDY: FINDINGS AND INTERPRETATIONS
Our efforts to evaluate the effect of Bartley-Fox resulted in two major lines of inquiry. First, the study evaluated
the impact of a firearm violation charge on securing convictions and imprisonment for those who use a gun while
committing another crime. Second, the study analyzed the way the criminal justice system has responded to the Bartley-Fox
mandate and the attendant limitations on the discretion of the police, prosecutors and courts. Because this response
is partly a function of the role of the firearm violation charge in the prosecution of violent crime, the results
of the initial inquiry will be examined first.
A. The Relationships Between Firearms Charges and the Prosecution of Gun-Related Crime
When the 1974 and 1975 samples were completed, it was clear that the Overlap between prosecutions for firearm
violations and gun-related crimes was much smaller than anticipated. Most prosecutions for violent crimes that
allegedly involved a firearm did not include a complaint charging illegal possession or carrying of a firearm.
Similarly, the majority of prosecutions for the illegal possession or carrying of a firearm were apparently unrelated
to the commission of a violent crime. This limited overlap required an evaluation of the role of the firearm violation
in the prosecution of those individuals charged with gun-related homicides, robberies and assaults. In particular,
we were interested in how often a firearms charge was included with the central felony charge, whether it aided
in the conviction of the defendant, and whether it increased the probability of a prison sentence after conviction.
To gauge the impact of Bartley-Fox on these factors, it is necessary to summarize the 1974 sample and to compare
it with the 1975 data, collected after the amendment became effective.
Table I describes the 1974 and 1975 samples of prosecutions for gun-related crimes. In each of these prosecutions,
the defendant was charged with a crime allegedly involving a firearm. In 1974, before the passage of Bartley-Fox,
firearm violations apparently played only a minimal role in the prosecution of gun-related crime. Although used
more frequently in assault cases (3 1 % of the cases), firearm violation charges were rarely brought in robbery
(18%) or homicide (8%) cases allegedly involving a firearm. When firearms charges were brought, however, the carrying
charges predominated, being employed in 26% of the assault prosecutions, 14% of robbery cases and 4% of the prosecutions
for homicide by firearm.
Several reasons help to explain the limited use of firearms charges by police and prosecutors when bringing
complaints. First, in many cases a firearms charge may not be appropriate, either because the defendant had [Page
116]
|
TABLE I
Use of Firearm Violation Charges in the Sampled Prosecutions of
Gun-Related Violent Crime
|
| |
|
Homicide
|
Robbery
|
Assault
|
Total
|
| Total Prosecutions |
|
|
|
|
| |
1974 Sample |
27
|
114
|
216
|
357
|
| |
1975 Sample |
17
|
126
|
153
|
296
|
| |
Change in Amount |
-10
|
+12
|
-63
|
-63
|
| |
|
(-37)
|
(11)
|
(-29)
|
(-17)
|
| Carrying Charges |
|
|
|
|
| |
1974 Sample |
1
|
16
|
56
|
73
|
| |
|
(4)
|
(14)
|
(26)
|
(21)
|
| |
1975 Sample |
3
|
14
|
45
|
62
|
| |
|
(18)
|
(11)
|
(29)
|
(22)
|
| |
Change in Amount |
+2
|
-2
|
-11
|
-11
|
| |
|
(200)
|
(-13)
|
(-5)
|
(-15)
|
| |
Change in Proportional Use |
376%
|
-21%
|
+13%
|
+2%
|
| |
|
|
|
|
|
| Possession Charges |
|
|
|
|
| |
1974 Sample |
0
|
1
|
8
|
9
|
| |
|
(0)
|
(1)
|
(4)
|
(3)
|
| |
1975 Sample |
0
|
1
|
5
|
6
|
| |
|
(0)
|
(1)
|
(3)
|
(2)
|
| S.O. Shotgun Charges |
|
|
|
|
| |
1974 Sample |
1
|
4
|
4
|
9
|
| |
|
(4)
|
(4)
|
(2)
|
(3)
|
| |
1975 Sample |
1
|
3
|
4
|
8
|
| |
|
(6)
|
(2)
|
(3)
|
(3)
|
| Total, Some Firearm Violation |
|
|
|
|
| |
1974 Sample |
2
|
21
|
68
|
91
|
| |
|
(8)
|
(18)
|
(31)
|
(25)
|
| |
1975 Sample |
4
|
18
|
54
|
76
|
| |
|
(24)
|
(14)
|
(35)
|
(26)
|
| |
Change in Amount |
+2
|
-3
|
-14
|
-15
|
| |
|
(100)
|
(-14)
|
(-21)
|
(-16)
|
| |
Change in Proportional Use |
+200%
|
-22%
|
+12%
|
-9%
|
| |
|
|
|
|
|
( ) = percentage equivalent
|
the proper authorization for the firearm or, more likely, because the evidence was not sufficient to support
a complaint for a firearm violation.[74] Second, the police officer may view the firearms charge as having at best
a cumulative impact on eventual punishment while introducing complexity and confusion into the prosecution effort.
The courts already have substantial sentencing powers for serious crimes involving firearms; conviction on a firearms
charge adds little to these powers. The 1974 data confirms that any sentence for a firearm violation was of little
significance when the defendant was also convicted of the underlying gun-related crime.[75] Finally, the 1974 [Page
117] data on dispositions shows that the bringing of a firearms charge had only a limited impact upon the conviction
rate by supporting a conviction when the other charges were dismissed. In just ten lower court cases was the defendant
convicted or bound over[76] on a firearms charge¾only five of these were carrying
charges-and released on other gun-related complaints; only one of these cases resulted in a prison sentence. Thus,
in the 1974 sample, firearms charges in general and the carrying charge in particular added only marginally to
the probability of conviction and did not affect the likelihood of imprisonment.
By making a one-year prison sentence mandatory for a carrying violation, Bartley-Fox drastically changed the
penalties for firearms violations. Also, the wide publicity given, the new penalties assured that police officers,
booking supervisors and complaint clerks were well aware of the law and its advantages as a court complaint. Thus,
the 1975 sample should demonstrate the fullest application of the statute in cases in which the charging officer
thought it could have any utility¾either by increasing the probability of conviction
or by assuring a minimum sentence for conviction.
Total prosecutions in the 1975 sample period for gun-related assaults and homicides sharply declined, and prosecutions
for firearm robbery increased moderately.[77] However, the proportional role of the firearm violation charge
remained relatively stable for both assault and robbery. (The apparently large increase in the use of firearms
charges in homicide cases is based upon too few cases to be statistically reliable and is, when analyzed on a case-by-case
basis, largely illusory.) Firearm violation charges were actually used slightly less frequently in 1975
robbery cases than in 1974; since police sympathy is unlikely in robbery cases, this would seem to confirm the
1974 impression that the carrying charge is useful in fewer than one fifth (18%) of all gun-related robbery prosecutions.[78]
A look at the pattern of robbery dispositions also reveals a pattern similar to that of 1974, sharply limiting
the importance of the few accompanying carrying charges: in one case the lower court bound the defendant over on
the carrying charge while finding no probable cause on charges of armed [Page 118] robbery, and in one other case
the grand jury returned an indictment on the carrying charge and, to date, no indictments on the other gun-related
charges. The 1974 sample has indicated that, if convicted, those charged with firearm robbery do receive prison
sentences¾most often in excess of two years and to the state prison. To date
it does not appear that the addition of a Bartley-Fox charge to such prosecutions will often affect either the
disposition or the net sentence.
The use of the charge in the prosecution of assaults stands in contrast to its declining use in robbery prosecutions.
The use of firearm violation charges showed a small increase in assault prosecutions.[79] Interestingly, this increase
occurred only among cases charging just assault with a dangerous weapon; carrying charges were used 19% more frequently,
and some firearm charge 10% in lore frequently, than in 1974. Thus, prosecutions for firearm assaults not resulting
in injury¾the least serious gun-related crimes, in which one might expect to
see some evidence of "charging sympathy"¾are actually the only prosecution
sector that shows a clear increase in the use of the carrying charge.
Unlike robbery cases, assault dispositions were affected by the introduction of the mandatory minimum sentence.
The 1974 sample demonstrated that firearm assault charges often were disposed of by means of probation, suspended
sentence, or the filing of a guilty finding,[80] although the most serious assaults did receive prison sentences.[81]
Although the disposition of assault charges themselves has not shown much change, the different handling of any
accompaning carrying charge has made a significant difference in the net outcome of such cases, since the carrying
charge and its Bartley-Fox sentence increase the probability that the defendant will be brought to trial and convicted
on some charge. Assault prosecutions can be terminated by the complainant, because Massachusetts statutes specifically
allow dismissal based on "accord and satisfaction," and most, in fact, are terminated by dismissal.[82]
In 1974, when an assault charge was dismissed, many courts also dismissed the accompanying firearms charge, or
at most imposed a small penalty. In 1975, this was not the case. In prosecutions for less serious assaults in 1974,
the defendant whose assault charge was [Page 119] dismissed was also discharged on his carrying charge in, 48%
of the cases. This occurred in only 18% of such cases in 1975. A similar change occurred when firearm violations
were attached to prosecutions for more serious assaults, with outright release decreasing from 34% in 1974 to 21
% in 1975.[83]
The more serious penalties resulting from Bartley-Fox have also affected court business by increasing appeals
to the superior court and bindovers in assault cases accompanied by firearm violation charges. Only one fifth of
those convicted appealed their disposition in 1974 but nearly two thirds appealed in 1975. Similarly, bindovers
by the district courts increased 40% on carrying charges related to assault prosecutions. Thus, final dispositions
in the district court decreased from two thirds of firearms charges in 1974 to one third in 1975.
In sum, the Bartley-Fox amendment does appear to have had an impact upon the prosecution of gun-related crime
through its role in the disposition of firearm assaults.[84] However, because armed robbery and homicide already
received serious response from the police and the courts and because a firearm violation charge does not increase
the likelihood of convictions in such cases, the contribution of Bartley-Fox does not appear to have been significant
in those prosecutions.
B. The Court System's Response to Bartley-fox
Although the usefulness of Bartley-Fox in the prosecution of violent crime is one significant concern, this
study has given its closest attention to the firearm charge itself and particularly to the carrying charge to which
the mandatory sentencing provision of Bartley-Fox applies. Two thirds of these cases come to the courts outside
the context of gun-crime prosecutions. indeed, those cases that involve only firearms charges should receive the
closest scrutiny in a system-response investigation.
To analyze these cases is to focus on the way in which a system that thrives on discretion responds to attempts
to circumscribe its power. It became clear to us that many judges in the courts we studied deeply resented the
constraints imposed by Bartley-Fox upon their sentencing discretion. It is also clear that in some cases the arresting
officer felt that a one-year prison term would be a most inappropriate disposition of the violation he had observed.
These two facts have led critics of the law to predict that participants in the criminal justice system would
find ways to avoid or evade the mandatory sentence, perhaps even to the point that no real change in the processing
of firearm violation cases would occur. More specifically, the critics argued that [Page 120]
[Page 132]
drop.[111] Because most of these prosecutions were for drug offenses and usually involved an alleged intent
to distribute, one can hardly argue that this drop is occasioned by police "sympathy" for the defendant.
These three characteristics of the charge distribution are strong evidence for the argument that the overall
31 % drop in firearm charges, including a 24% reduction in carrying charges, was due primarily to increased citizen
compliance.[112] This does not, of course, mean that police officers have not and will never "look the other
way" when an arrest might be made. The final approach to this question¾analysis
of defendant and case profiles¾also cannot exclude the possibility that an occasional
"sympathy" decision to forego an arrest occurs. But it does make it clear that arrests have been
made where no "criminal intent" was apparent and where defendants had no prior criminal records.
We know from the court records of the sample that more than half of those charged with various firearm violations
were arrested in circumstances that justified the bringing of no other charges. Several, in fact, were arrested
when they reported the occurrence of crimes of which they had been the victims. According to our probation
record survey, 33% of those individuals arrested on Bartley-Fox charges had no prior record of any kind,
and 8% had only a minor prior court record.[113] When one looks at those defendants for whom the carrying charge
was the only serious offense charged, the probation sample shows 48% with only a minor record or no record at all.
A closer scrutiny of the background data on Bartley-Fox defendants developed from the probation records analysis
allows us to look for differences between 1974 and 1975 sample defendants¾differences
we would expect to find if police significantly altered their enforcement patterns. The 1975 sample of carrying
defendants was almost totally male; discounting for the greater degree of missing data in the 1975 sample, there
was no difference between the 1974 and 1975 samples on this variable. In both 1974 and 1975, approximately one
third of the defendants were single and [Page 133]
|
TABLE V
Summary Table of Data from Probation Files on Samples of 1975 and 1974 Carrying Charge Defendants
|
| |
|
|
|
|
Variable
|
1974
|
1975
|
| Total Sample Size |
N = 162
|
N = 170
|
| |
|
|
|
| Sex |
N = 162
|
N = 163
|
| |
Male |
93.8%
|
92.0%
|
| |
Female |
6.2%
|
8.0%
|
| |
|
|
|
| Marital Status |
N = 161
|
N = 161
|
| |
Single |
36.0%
|
38.5%
|
| |
Divorced |
50.3%
|
52.2%
|
| |
Divorced/Separated/Widowed |
13.7%
|
9.3%
|
| |
|
|
|
| Age |
N = 162
|
N = 163
|
| |
17-19 |
13.6%
|
10.4%
|
| |
20-24 |
30.9%
|
33.1%
|
| |
25-29 |
24.1%
|
22.1%
|
| |
30-34 |
8.6%
|
12.9%
|
| |
35-39 |
8.6%
|
8.0%
|
| |
40+ |
13.6%
|
13.5%
|
| |
|
|
|
| Occupational Area 114 |
N = 144
|
N = 140
|
| |
Professional/Managerial |
13.1%
|
7.9%
|
| |
Clerical/Sales |
4.2%
|
2.9%
|
| |
Farm/Manual/Factory |
27.8%
|
31.4%
|
| |
Protective/Service |
25.7%
|
25.7%
|
| |
Student |
7.6%
|
10.0%
|
| |
Unemployed |
18.1%
|
17.1%
|
| |
Other |
2.1%
|
4.3%
|
| |
|
|
|
| Race |
N = 157
|
N = 153
|
| |
White |
28.0%
|
33.3%
|
| |
Black |
65.0%
|
54.9%
|
| |
Spanish |
7.0%
|
9.2%
|
| |
Other |
0.0%
|
2.6%
|
| |
|
|
|
| Prior Court Contacts |
N = 159
|
N = 170
|
| |
None at All |
23.9%
|
32.9%
|
| |
Three or Fewer and Minor 115 |
9.4%
|
8.2%
|
| |
Significant |
66.7%
|
58.8%
|
slightly over one half were presently married. Roughly 43% of the defendants in both samples were under twenty-five,
with another one fifth of the group between twenty-five and twenty-nine. Overall, the age distributions were about
the same in both samples. Defendants in the 1975 sample listed [Page 134] their occupational area as professional
or managerial slightly less often, and as student or "other" slightly more often than in 1974.
There are two variables on which the change between the 1974 and 1975 samples is perceptible:
race and prior court record. In both areas, however, the difference is in the opposite direction from that predicted
by those who thought the law would result in increased discrimination or in the evasion of arrest in-sympathetic"
cases. Defendants in 1975 were less likely to be black than in 1974, with the percentage decreasing
from 65% to 55%.[116] Additionally, the 1975 defendant group had a somewhat higher proportion of defendants with
no prior court record of any kind than in 1974¾33% to 24%. Even within the category
of defendants whose current case involved no other felony, some 45% of the defendants in 1975 had only a minor
record or no record at all.
As with race, the various differences on this rough measure of criminal history are not statistically significant
given the size of the sample involved. What is most interesting, however, is the fact that the measures in no way
support the argument that those prosecuted in 1975 constituted a specially disfavored group, with whites
and those with "clean" records getting breaks from the police. Indeed, the overwhelming impression one
gets in comparing the 1974 and 1975 probation samples is that the two are alike. There are no statistically
significant differences between the two groups on the variables we have examined here, and, in fact, on most of
them there are no perceptible differences. This impression appears to contradict the prediction that the police
would avoid making Bartley-Fox arrests in "sympathetic" cases.
(2) To avoid the mandatory sentence, police officers would bring the misdemeanor "possession" charge
even though the "carrying" charge could be proved. It is probably correct that most of those individuals
carrying a handgun lack an FID card as well as a license to carry. And, by definition, those persons guilty of
illegally carrying a long gun are guilty as well of illegal possession, since both crimes depend on the lack of
an FID card. Resort to the lesser charge, then, could offer police officers one route for evading the statute without
sacrificing the arrest.
Before assuming that each case limited to a possession charge is an attempt to evade the legislature's intent,
however, it is useful to remember the second lesson drawn from the 1974 court sample: a significant number of firearm
arrests will occur in circumstances that do not constitute the "carrying" of the firearm but that may
encompass the mere possession or ownership of that weapon. Case-by-case analysis¾utilizing
attorney interviews, police reports and interviews with police officers¾of the
twenty-two possession complaints that were prosecuted during our 1975 sample period persuaded us that none of these
cases could have been successfully prosecuted as carrying [Page 135] complaints. In two cases, evidence existed
that the defendant owned the firearm, but no evidence established that he was carrying it; in one case involving
two defendants, the circumstances appeared to support carrying charges, if anything, but the facts were insufficient
to establish any possessory link, and both defendants were released by the court on the possession charge;
and, in the remaining cases, the arrests occurred at the home or business of the defendant. In short, police evasion
of the mandatory penalty by this route simply did not occur.[117]
(3) To avoid the mandatory sentence, prosecutors would reduce charges from carrying to possession. As
noted in the earlier discussion of the Massachusetts lower courts,[118] this assertion to a large degree fails
to capture the reality of the lower courts. The prosecutor¾if the prosecutor
is not simply the arresting officer¾rarely becomes involved in cases until after
a complaint has been issued. Moreover, at this stage he does not have unilateral control over the case; if he wishes
to remove a complaint, he must obtain court approval.
There were only four cases in our sample in which a Bartley-Fox charge was dismissed in favor of a possession
charge. In three of these cases the inadequacy of the carrying charge was rather apparent, since two arrests had
occurred at the defendants' homes and the third at the defendant's place of business; all three of the defendants
were convicted of illegal possession. We have no information on the fourth case. There were eleven cases¾representing
6% of all dispositions¾in which the charge was dismissed on the complainant's
or the prosecutor's motion. We were able to contact the listed attorney in eight of these cases and learned that,
in five, the weapon could not fire or otherwise did not meet the statutory definition of a "firearm,"
in two the police had no affirmative evidence that the weapon had been in the defendant's possession, and in one
the defendant was arrested at his place of business. Of the remaining three cases for which we have no supplemental
information, one resulted in bindovers on assault and narcotics distribution charges-not a particularly sympathetic
context. In short, the maximum number of cases in which lower court "Prosecutorial discretion" may have
operated is three of fifteen, and we entertain this estimate only because these cases did not have a listed attorney
whom we could contact.
At the superior court level, the prosecutor has somewhat greater flexibil- [Page 136] ity, at least where the
case is proceeding through the grand jury. Again, that there may be solid reasons why a charge should be dropped
is evidenced by the fact that the Suffolk County grand jury returned "no bill" on eight carrying charges
in our 1974 sample¾although in none of these cases was the carrying charge the
most serious charge. While many of the Suffolk Superior Court cases in our 1975 sample are open, grand jury action
on the thirty-three that were bound over is complete.[119]
|
TABLE VI
Status of Sampled Carrying Cases
Proceeding to Superior Court a
|
| |
1974
|
1975
|
| |
Major Felony
|
Lesser Felony
|
Firearm Only
|
Major Felony
|
Lesser Felony
|
Firearm Only
|
| No Bill b |
7 |
1 |
0 |
4(2) |
0 |
0 |
| Dismissed |
3 |
1 |
1 |
2(1) |
1 |
5 |
| Not Guilty |
1 |
0 |
1 |
2(1) |
3(2) |
6 |
| Filed, No Change in Plea |
0 |
1 |
0 |
0 |
0 |
0 |
| Guilty, Filed |
3(3)c |
0 |
1(1) |
|
|
|
| Probation |
2(1) |
0 |
1 |
0 |
0 |
0 |
| Suspended Sentence |
2(2) |
2 |
5 |
0 |
0 |
2 d |
| One Year or Lesser Term |
0 |
1 |
1 |
5 |
5 |
6 |
| Up to Two-Year Term |
0 |
0 |
3 |
0 |
2 |
0 |
| More Than Two-Year Term |
8 |
1 |
0 |
7 |
3 |
2 |
| __________________________________________________________________ |
| Default |
3 |
2 |
7 |
2 |
5 |
11 |
| Pending |
4 |
3 |
3 |
16 |
6 |
13 |
| Not Located |
0 |
0 |
4 |
0 |
1 |
1 |
| __________________________________________________________________ |
| Total |
32 |
11 |
27 |
38 |
26 |
46 |
| __________________________________________________________________ |
a. The 1974 sample includes eight major felony cases in which a carrying charge was added by the Grand jury; in
1975, there were nine such cases, of which six were major felonies. Sentences of more than one year were typically
concurrent with sentences already being served in other cases.
b. Includes bindovers in which the carrying charge was brought in lower court but in which no mention of that charge
is found in Superior Court papers for that case.
c. ( ) = But sentenced on other charges in this or another case.
d. Charge reduced to simple possession. |
In only four of thirty-three 1975 sample cases requiring a grand jury proceeding has an indictment been refused;[120]
in two, indictments were also rejected on accompanying major felony charges of robbery and kidnapping, and, in
the remaining two, indictments were returned on accompanying major felony charges. Neither of these circumstances
is ripe for a sympathy [Page 137] vote. There were two cases in which Bartley-Fox charges were reduced to possession
charges at the superior court. These may. well reflect "prosecutorial discretion," although, as we learned
at the lower court level, there may be valid technical reasons for such a reduction. In short, although a narrow
range for prosecutorial discretion in shifting or dropping the complaint brought does exist, this discretion has
been exercised in favor of the Bartley-Fox defendants in our Boston sample rarely or not at all.
(4) Rather than sentence defendants to a year in prison, judges will continue cases indefinitely, place guilty
findings on file and enter nonprison sentences that are inconsistent with the law. Outright defiance of the
law's triple mandate¾no indefinite continuances, no cases filed, and no suspensions
of the minimum one-year sentence¾is one avenue to neutralize the law, though
certainly a most troubling route. Some media coverage of the law has reported that such illegal dispositions have
been frequent occurrences; when not based on casual anecdotes, these assertions have been grounded upon surveys
of the lower and superior courts conducted by mail and upon the resulting unaudited responses of participating
court clerks.[121] But in responding to such surveys many Massachusetts court clerks appear to have reported on
all proceedings initiated on or after April 1, 1975, thus including some lower court cases and a significant
number of superior court cases rooted in incidents occurring before the mandatory provisions took effect.[122]
Our docket. review was limited to Boston and we cannot generalize from that review to definitive statements
about practice throughout the' Commonwealth nor, indeed, to the handling of cases entering the system since selection
of our sample was completed. However, within the confines of our sample, we found no lower court cases placed on
file and only one case repeatedly continued, thus apparently violating the language of the amendment.[123] Some
defendants appear to have appealed before sentence was imposed, but in every case in which a sentence was imposed
it met the requirements of the act, and the nine defendants who did not appeal their convictions all received at
least the statutory minimum. The sentences imposed in Suffolk Superior Court to date are also consistent with the
law.
In the course of our study, project staff heard several anecdotes, including one quite specific one, about patently
illegal handling of cases initiated during our sample¾e.g., "set
a trial date in the year 2012." All we can say is that our review located only a single case which raised
a question about improper handling.[124] [Page 138]
(5) To avoid having to impose the mandatory sentence, lower court judges will release defendants who would
have been convicted in the absence of the mandatory Prison term. Strictly speaking, Bartley-Fox requires that
courts enter final dispositions in every case and that every finding of guilt be followed by the imposition of
the mandated prison term. However, it does not, and could not, mandate that those accused of a carrying offense
be convicted for that offense. No matter how automatic the step from conviction to prison sentence, there
is nothing automatic about the step from prosecution to conviction. Indeed, our 1974 sample demonstrates that when
prosecutions with the complexities of the firearm statutes are undertaken, a significant proportion of dismissals
(21%) and acquittals (16%) must be expected at the lower court level.[125] The question we had to analyze, therefore,
was not whether some defendants were still going to be released by the lower court after Bartley-Fox took
effect, but whether there would be an increase in the proportion released that suggested a judicial strategy of
evading the law in "sympathetic" or "noncriminal" cases. Detailed comparison of our 1974 and
1975 samples is therefore instructive and intriguing.[126]
After allowing for the significant increase in defaults, a noticeable decrease in the use of dismissals, including
continuances leading to dismissals, is disclosed along with an offsetting increase in acquittals.[127] Nonetheless,
the most striking fact about the overall comparison is that there was little or no change in the proportion of
the defendants convicted or bound over. With all of the attention given judicial discretion, and the emphasis placed
upon the "strains" the penalty change would 'place on the court system, we were initially surprised by
this result. It turns out that this overall proportion is a product of two very different trends and that an increase
in convictions and bindovers for those accused of other felonies "masks" an increase in acquittals for
those facing only carrying charges.
The first of these trends has already been discussed in terms of its primary effect upon assault charges,[128]
and we concentrate here on the latter trend, present only for those who faced no other felony charges. One change
that the data suggests concerning this group of defendants is that those cases that would previously have been
continued without assessing the informal penalty of court costs were dismissed outright in 1975, while those that
would have been continued with costs or filed (6%) now resulted in acquittals. In addition, roughly one fifth of
the defendants who might [Page 139] previously have been convicted and given some penalty¾in
1974, 30% of defendants convicted were given a fine or probation without any suspended or actual prison term¾were now released by the lower court. Such a shift strongly suggests, after appropriate
statistical caveats, that a noticeable number of dispositions have shifted from conviction or bindover to release
in "carrying only" cases.
We should emphasize, though, that the cases "shifted" from conviction to release only constitute a
maximum of 13% of all the cases in which only Bartley-Fox charges were involved and only about 7% of all cases
involving Bartley-Fox charges. The fairest estimate from this portion of the data is that fourteen or fifteen cases
involving only Bartley-Fox charges might have been decided differently as a consequence of the new law, resulting
in the release of a defendant who might formerly have been convicted by the lower court. The additional range for
discretion, then, was quite limited; even in the cases in which Bartley-Fox was the only charge, half the cases
were completed with conviction or bindover.
It does not follow that because a case was decided differently it was decided without regard to its merits.
A candid assessment of the Massachusetts court system compels the conclusion that, although improving steadily,
the lower courts have often appeared unconcerned with the niceties of reasonable doubt, suppression of the fruits
of unconstitutional searches, or the close scrutiny required by "technical" defenses. It is clear from
our interviews that because the Bartley-Fox penalties are perceived as disproportionate, at least in the absence
of "criminal intent," lower court judges are now prepared to consider closely the more technical arguments
and to weigh more carefully the defense testimony presented. There may thus be a very positive aspect to at least
some of the change in the disposition pattern.
Just as our estimates from the 1974 data do not establish that every "different" decision flew in
the face of an overwhelming prosecutorial case, they also do not establish that only the different cases were potential
"sympathy" decisions. Rather, they represent an expansion upon prior practice. The exercise of lower
court discretion has always been a two-way street and, as noted earlier, perhaps as many as 6% of all 1974 dispositions
had been made as dismissals with costs assessed in order to avoid giving defendants a criminal record.129 It is
probably true that not all of these cases would have produced a conviction if tried on the merits; that 6% should
therefore be read as the outside bound of the estimate of "traditional" discretion still being exercised
after the insertion of the mandatory minimum. Based upon the comparison of 1974 and 1975 dispositional statistics,
then, perhaps as many as twenty cases with no other felony charges were concluded with special attention to the
equities of the defendant's circumstances as well as to the legal merits of the charge.[130] [Page 140]
Because the exercise of lower court discretion in adjudicating these cases is the linchpin of this study, we
felt compelled to work through the dismissals and acquittals from a second angle¾this
time considering each Bartley-Fox case only on its own merits, based upon information from our supplemental follow-ups,
rather than in an aggregate comparison to 1974. The results are impressively congruent. In fifty-one of the sixty-eight
cases in which the defendant was discharged by the lower court there was sufficient information in the court papers
to allow us to identify the defense counsel. All but nine private attorneys thus identified have been interviewed,131
and interviews were completed in all but two of the cases handled by either the Massachusetts Defenders or the
Roxbury Defenders. In addition to these interviews, there were nine cases in which the police report or other records
and follow-ups disclosed enough information to compensate for the absence of an attorney interview. Of forty-nine
case profiles developed from these various sources, thirty-nine were cases with no other felony charge, our focus
at this point; these thirty-nine profiles cover 74% of the total of fifty-three released defendants who had faced
no other felony charges.
Table VII summarizes our evaluations of those case profiles. The attorneys often reported that the judge who
heard the case indicated that he did not like the law, that it was a "straightjacket ." But in many cases
the attorneys also insisted that their client had had a solid defense to this particular complaint; based upon
the attorneys' descriptions and the police reports, 69% of these cases have been classified as "no influence,"
reflecting our conclusion that, under relevant case law, these defendants should clearly have been discharged.[132]
In 13% of the cases for which we have profiles, the judge was thought to have been significantly influenced by
the penalty mandated by the statute. Defense counsel felt that in these cases the judges applied "three hundred
percent reasonable doubt" and did not reject the defendant's version of the facts in circumstances in which
the testimony of the prosecution's witnesses was sufficient to support a conviction.[133] And in 18% of the cases
the attorneys felt that the judge's decision to exercise discretion in the defendant's favor was the sole determinative
factor in the case. Several of these cases fell within categories in which an attorney might well have expected
his client to be released under traditional exercises of discretion, e.g., defendants who were retarded,
mentally disturbed, or severely ill at the time of the offense. In the remaining "determinative [Page 141]
|
TABLE VII
Role of "Judicial Discretion" in the Release by Lower Courts of Bartley-Fox Defendants
Not Charged with Other Felonies
|
| |
Role of Judicial Discretion
|
| |
Determinative
|
Significant
|
No Influence
|
| Had Non-Mass. Permit |
1
|
0
|
0
|
| Had Correct Mass. Permit |
0
|
0
|
1
|
| Defendant Mentally Ill/Not competent |
4
|
0
|
0
|
| Legality of Search Challenged |
0
|
2
|
2
|
| Arrest Was at Home/Business |
0
|
0
|
4
|
| "Control" at Issue |
1
|
2
|
7
|
| Physical Possession at Issue |
1
|
0
|
3
|
| "Momentary" Possession Only |
0
|
0
|
1
|
| Unable to Prove Weapon Constituted "Firearm" |
0
|
1
|
9
|
| |
________
|
________
|
_________
|
| 39 Cases Profiled |
7
|
5
|
27
|
| percent of completed sample |
(18)
|
(13)
|
(69)
|
| __________________________________________________________________________ |
|
Estimates of the Range of judicial Discretion for the Bartley-Fox Only Defendants, Based on
Sample Cases
|
| __________________________________________________________________________ |
| Lower Range Estimate: Assuming that the proportion of "no influence" cases in the completed sample
is the same for those cases lacking a supplemental profile: |
| |
|
|
|
| 14 cases x 31 % ("determinative" and "significant") |
= 4 cases |
|
| (plus) cases in completed sample |
|
= 12 cases |
|
| |
Some Influence |
= 16 cases |
|
| |
|
|
|
| Upper Range Estimate: Assuming discretion was exercised in twice as many cases: |
| |
|
|
|
| 14 cases x 31% x 2 ("determinative" and "significant") |
= 9 cases |
|
| (plus) cases in completed sample |
|
= 12 cases |
|
| |
Some Influence |
= 21 cases |
|
influence" cases, the defendant may have had an "excuse" or a "theoretical" defense,
but the support for it was such that it would almost certainly have been ignored if the mandatory sentence had
not been involved; the circumstances apparently did not reflect any malicious or criminal intent, and judges were
prepared to accept the defenses rather than convict.[134] Thus, depending upon the assumptions one makes about
the various cases for which we have no data, from 69% to 62% of the dismissals or acquittals were based on solid
legal defenses. Some of the "influenced" acquittals, moreover, might well have occurred in the absence
of the mandatory penalty.[135] [Page 142]
Two themes recurred in our conversations with these and other attorneys. First, judges were uniformly unhappy
with the law, and many were quite vocal about their displeasure. judges were therefore prepared to listen closely
to defense arguments and often seemed relieved that the defense did have an argument. For similar reasons, defense
attorneys put considerable additional effort into legal and evidentiary argument in cases that might previously
have been settled by continuance or plea bargain.
Second, lower court judges, with perhaps one or two exceptions, were not prepared to release defendants merely
because their circumstances were unfortunate. A defendant whose behavior seemed to show no criminal intent would
be given every reasonable doubt, but rarely would he receive more. As one attorney put it, "Give the judge
some argument that will float a little, in a case of this sort, and he will try to hang his hat on it. But if there's
no line of defense open, there will be a conviction." Several attorneys told us of cases they had handled
in which the "equities" were all in favor of their client but where no amount of imagination could construct
a palatable theory of defense; these clients were all convicted in the lower court'
If we apply our assessment of case outcomes to the fifty-three carrying charge-only defendants in the sample
who were released, we conclude ' that between sixteen and twenty-one of the cases were at least significantly influenced
by the courts' own unwillingness to convict the defendant; in perhaps half of these cases that factor was determinative.
Although the exact number chosen for this estimate depends upon the assumptions made about the cases for which
no information is available, the number selected would in any event match fairly closely the estimate based on
our statistical comparison with 1974. That comparison suggested a maximum of twenty cases with only carrying charges
in which the disposition had either been based on "traditional discretion" or specially influenced by
the new law. We noted in presenting that analysis that some of the statistically demonstrable change might have
been due to greater judicial sensitivity to legitimate defenses rather than to the expanded exercise of discretion.
Since we learned from the case-by-case analysis that several of the "discretionary" releases would have
been expected under the old law as well, it is possible that the entire [Page 143] increase in acquittals
is due to more careful defense work rather than "sympathy"¾a theme
to which we return momentarily.
It is worth emphasizing again that, as a usual matter, judges did not change their approach to deciding cases
merely to avoid the mandatory sentence. One hundred ten defendants were found guilty, bound over, or indicted under
the Bartley-Fox amendment, including forty-seven defendants for whom Bartley-Fox was the only serious charge. Thus,
half of those for whom Bartley-Fox was the only serious charge were not released by the lower court. Lest one conclude
that only the defendants who obtained release presented sympathetic cases, we note that, of the eighty-eight convicted
or bound over defendants for whom we have probation records, 28% had no prior record and another 5% had only a
minor record. And probation records for thirty-nine of the forty-seven unreleased defendants with only Bartley-Fox
charges reveal that 3 1 % had no prior record at all, and another 10% had only a minor record. In fact, lack of
prior record showed no influence on the likelihood of conviction in Bartley-Fox cases, once one controls for the
relative seriousness of accompanying charges.
Rounding out this picture is the net increase in convictions and bindovers on carrying charges where other felony
charges are involved. This change suggests that courts' perceptions of the law and of the seriousness of the firearm
offense have shifted. Although discretion may still be exercised at the margins, the typical defendant facing
a carrying charge will not benefit from that discretion and, indeed, is now more likely to be convicted¾and
if convicted, to receive a substantially more severe sentence¾than was true under
prior practice.
These comments, which are based both on our statistical analysis and on our analysis of supplemental profiles,
received some intriguing confirmation when we had an opportunity to factor in our probation sample data on defendants'
prior contacts with the courts. As mentioned, this data demonstrated that within groupings by seriousness of charge¾major felony, lesser felony, no accompanying felony¾the
degree of prior court record was unrelated to whether a defendant was released by the court or convicted/
bound over. If judges were engaged in the wholesale practice of "letting off' sympathetic defendants, one
would expect prior record to show a significant relationship to likelihood of release, but it does not.
Table VIII displays in summary form the interaction between prior record, seriousness of accompanying charge
and disposition.[136] It demonstrates, first of all, that those defendants facing other felony charges in addition
to a carrying charge were less likely to be released by the lower court after Bartley-Fox took effect and that
this was true both for those with limited prior records and for those with more extensive prior records. A second
aspect of the table is more critical, however, because it is the [Page 144]
|
TABLE VIII [137]
Proportion of Defendants Convicted/Bound Over/Indicted on Carrying Charge, by Accompanying Charge and by Extent
of Prior Court Record
|
| |
|
1974
|
1975
|
| |
|
Some
Additional
Felony
|
No
Other
Felony
|
Some
Additional
Felony
|
No
Other
Felony
|
| Extent of Prior Court Record |
|
|
|
|
| |
None at All or
Relatively Minor |
13
|
14
|
17
|
16
|
| |
|
(65)
|
(47)
|
(22)
|
(43)
|
| |
|
|
|
|
|
| |
Significant Prior Record |
33
|
34
|
32
|
23
|
| |
|
(67)
|
(68)
|
(76)
|
(50)
|
| |
|
|
|
|
|
| Total, Probation Sample |
46
|
34
|
32
|
23
|
| |
|
(67)
|
(60)
|
(77)
|
(47)
|
| |
|
|
|
|
|
| Total, Full Court Sample |
70
|
80
|
63
|
47
|
| |
|
(60)
|
(63)
|
(80)
|
(47)
|
( ) = Percent of total cases in this category for which extent of prior court record was known from the Probation
Sample. ( ) for Full Court Sample indicates the percentage of the total number of cases studied falling into this
category.
counter-intuitive nature of the pattern that confirms our prior analyses of the role of discretion and defense
work. The probation analysis shows that those defendants with limited prior records who were facing only carrying
charges were roughly as likely to be convicted/bound over by the lower courts after Bartley-Fox as before. If sympathetic
releases were widespread, this is precisely where they should have shown up. In fact, however, the increase in
the rate of release comes not for those individuals with limited records but for those with significant
prior records.
This unexpected result makes sense only once one recognizes the dynamic process triggered by the mandatory minimum
sentence. Those defendants who already had prior records would not, before Bartley-Fox, have made a serious effort
to contest a finding of guilt at the lower court level. The emphasis would instead have been on cooperating with
the system and attempting only to ensure that no prison term was imposed at the sentencing stage.[138] With the
introduction of Bartley-Fox's mandatory minimum sentence, however, a prison term could be avoided only by contesting
the finding of guilt itself. And given the complexities of proving a carrying [Page 145] charge, an increase in
such contests inevitably produces an increase in the proportion of defendants released outright. The proportion
of cases closed by outright release increased from 32% in 1974 to 50% in 1975 for these defendants;[139] yet it
seems safe to assume that judicial discretion would play a minimal role in dealing with these defendants. This
pattern appears, therefore, to demonstrate what we could previously only hypothesize: the increase in releases
of those individuals only facing carrying charges is primarily due to more careful presentation and consideration
of legitimate legal defenses rather than to attempts to "let off' sympathetic defendants.
V. CONCLUSION TO PART ONE
This article's analysis of the legal system's response to Bartley-Fox has basically proceeded in a reactive
mode. This has been necessary because much had already been said by other observers about the law, its effect on
behavior and its handling by the courts before the data upon which this report is based could have been gathered.
Thus, we have emphasized any signs in Boston's experience that police, prosecutors, or judges have deviated in
some way from vigorous enforcement of the law. We did find such signs in our court samples as to some points; the
outstanding characteristics of our samples, however, are not the signs that some deviation has occurred, but two
other facets. First, the realities of arrest, prosecution and conviction proved to be fine-grained and complex.
We entered the analysis with the expectation that, if the law were being fully enforced, almost all persons arrested
should wind up serving a year in prison; we were prepared to read each case with any other outcome as an evasion
of the legislative mandate. The reality is, however, rather different. It has never been easy to win a carrying
charge conviction on the merits. Some charges are incorrectly brought, and some cases against multiple defendants
cannot be successfully prosecuted against more than one. There are legitimate defenses to be argued, including
motions to suppress evidence seized in illegal searches which the courts cannot condone. It also takes time to
handle cases¾especially when almost every conviction will require a superior
court proceeding¾and some defendants will disappear, or die, during the course
of the proceedings.
Second, the Boston lower court judges, although very much opposed to the mandatory sentence, nonetheless imposed
it. There have been cases in which judges appear to have acquitted defendants rather than be forced to sentence
them, but these instances were neither frequent nor predictable. When default cases are set to one side, 62% of
the Bartley-Fox defendants were convicted or bound over to the superior court. As a result, the law has significantly
altered the lower court system's handling both of firearm assault cases and of those cases in which the carrying
violation was the most serious charge.
That last group represents, of course, those prosecutions that most [Page 146] severely test the court system.
In 1974, only 28% of those defendants whose most serious charge was a carrying violation received any prison
sentence from the lower court or were bound over, while 34% received suspended sentences or lesser penalties
upon conviction. In 1975, almost half were sentenced to at least one year, bound over, or indicted. Perhaps more
to the point, of the twenty prison sentences imposed on individuals in the 1974 sample group, thirteen were appealed
and very few of those defendants appealing received an equivalent sentence.[140] In fact, then, only 9% of these
1974 defendants were sentenced to prison¾and fewer than half of them were effectively
sentenced to a year or more. Our rough estimate is that a prison sentence will be imposed more than five times
as frequently for similarly situated 1975 defendants. Whatever the eventual results before superior court judges
and juries,141 the lower court judges by and large have applied the law as required, even when they saw the results
as pernicious.
It appears from our study, and from newspaper accounts of cases in other Massachusetts jurisdictions, that defendants
were likely to benefit from judicial discretion only in three circumstances: (1) where the defendant was not a
Massachusetts resident and either was unaware of the law altogether or had a permit of some sort that was sufficient
in his home jurisdiction and that he believed would satisfy the Massachusetts statute;142 (2) where the defendant
was incompetent, retarded, or mentally disturbed and thus a prime candidate for "traditional" discretion;
or (3) where the circumstances reflected no further criminal intent and the defendant had some line of defense
open which had some substance to it. Defendants who had solid defenses were released on the carrying charges¾in some cases even as they were being bound over on other charges. But, at the same
time, competent defendants caught "red handed" were being convicted or bound over, even where "the
equities" might previously have produced judicial sympathy.
Similarly, no one can doubt that police officers might sometimes have avoided the law by not making an arrest;
yet, the pattern of charges in 1975 strongly suggests that the reduction in prosecutions primarily reflects increased
citizen compliance with the law and that any effect of police discretion has been strictly secondary. This conclusion
is fully consistent with our analyses of the ways in which the law has shifted citizen behavior, to be advanced
in the second installment of this article. The gun crime prosecution statistics that have been discussed¾and
that set the backdrop for the discussion of deterrence¾establish that a definite
change in penalty for firearm assault has occurred and that courts, faced with Bartley-Fox defendants, are prepared
to enforce the new law.
* A.B., Princeton University, 1971; M.A., Harvard University, 1974; J.D., Harvard Law School, 1975. This project
was undertaken while the author was a Research Associate at Harvard Law School's Center for Criminal justice, a
tenure supported in part by a fellowship from the Russell Sage Foundation.
This paper is the product of one year of intensive effort by the Gun Law Project of the Center for Criminal
justice. As Project Director, the author is responsible for the final shape and content of this article and the
report upon which it is based. But the credit for this research effort properly belongs to the project group as
a whole: Rosanne Kumins, project coordination; Lorraine S. Blair, legislative analysis; Helene Whittaker, Thomas
Bowler, Gerry Bryant, David Scheie, Mary Ann Timpson, Sheila Jasenoff and Craig Kirby, data development and field
work; Reece Erlichman and Jeffrey Juster, attorney interviews; and Daniel McGillis, Andrea Mintz and Joseph White,
media analysis.
In preparing this article, the author had the considerable benefit of several rounds of careful reading and
constructive criticism by colleagues at the Center, particularly Lloyd E. Ohlin and Alden Miller, and of extensive
editorial guidance from Judith Auerbach. I have appreciated both their willingness to work with me. and the many
insights they contributed.
This kind of detailed case-by-case research is an exasperating and time-consuming effort, placing heavy demands
on many criminal justice agencies. Without the cooperation of many public officials in gathering statistics and
in developing case-specific information, the study would simply have been impossible. We are grateful, therefore,
to former Commissioner Robert DiGrazia and the Boston Police Department; the Honorable Walter McLaughlin, Chief
judge of the Massachusetts Superior Court; the late Franklin Flashner, Chief judge of the Massachusetts District
Court; the Honorable Jacob Lewiton, Chief judge of the Boston Municipal Court; Commissioner Elliot Sands and the
Department of Probation; Edward Keating, Clerk of the Superior Criminal Court of Suffolk County; the Presiding
judge and Clerk of each of the Boston lower courts; the Chief Probation Officer at each of the five courts from
which we drew our probation samples; and the Department of Public Safety. We wish we could thank by name all the
line staff at these agencies who gave us their help day after day. Sometimes, it is true, someone cooperated only
grudgingly. But our overwhelming experience was one of genuine cooperation and friendliness even when it must have
seemed that our requests would never end.
The author is especially grateful to Professor James Vorenberg of the Center and Harvard Law School; Professor
Vorenberg initiated, sponsored and illuminated the project's efforts.
Click here to view Part II.
1. Mass. Gen. Laws Ann. ch. 269, § 10 (c) (Supp. 1976).
2. To ensure that we would be able to obtain information about the first cases brought under Bartley-Fox while
memories were still fresh, the Center decided to implement fieldwork activities at once, using its own funds, rather
than wait through the tortuous process of obtaining a suitable research grant. The project was therefore supported
by the Centel's own funds, under a grant from the Ford Foundation. Supplemental research was assisted by the Department
of Sociology, Harvard University. Several members of the staff contributed significant portions of their time as
volunteers.
3. All of our research was done under a plan for preserving the anonymity of records that was approved by Massachusetts'
Criminal History Systems Board; all members of the staff signed sworn statements not to divulge case details from
which the identity of suspects or defendants might be learned. In part for this reason, no anecdotes based on confidential
records or interviews are presented in this article.
4. Both samples were exhaustively cross-checked against Boston Police Department arrest files for completeness.
Work-ups on these cases were based upon court records and often extended to probation files and arrest and incident
reports. We also interviewed defense attorneys about some of their cases; we did not, however, interview prosecutors
or judges. Given that this was a highly controversial law and that the system's discretion was itself a major factor
in the law's implementation, we concluded¾after some debate¾that
interviews with these parties would present significant ethical problems. Even though there was already some public
scrutiny of judicial and prosecutorial discretion under this law, we could think of few things more likely to chill
the exercise of that discretion than continual oversight. We set out to study the contours of discretion, not to
constrict them. We must concede, however, that such interviews could have made significant contributions to some
of our case-by-case profiles.
5. Because of this concentration of violent crime, Boston criminal justice officials may treat the carrying
of firearms as a more serious threat to public safety. For example, the Boston Police Commissioner, during the
period we studied, advocated a complete ban on handguns. Conversely, sport-shooting and hunting are more common
outside metropolitan Boston and thus more likely to support protestations of innocent intent.
6. See notes 86-90 and, accompanying text infra. The future of the de novo system is uncertain.
A special committee established by Governor Michael Dukakis and chaired by Professor Archibald Cox recommended
in December 1976 that the de novo system be abolished. This recommendation has not, as yet, been acted upon. See
The Governor's Select Committee on judicial Needs, Report on the State of the Massachusetts Courts 30-32 (Dec.
1976).
7. Massachusetts regulates firearm activity by means of three separate networks of laws: laws concerning transfers
of firearms, including requirements for filing weapon-specific information; laws concerning authority to
own, possess, or carry firearms; and laws punishing improper use of firearms, including additional penalties
for their use in committing a crime. This article is concerned only with the middle group, those laws controlling
the ownership, possession and carrying of firearms.
The term "handgun" is used in this article to refer to pistols and revolvers, while "long gun"
is used to refer to rifles and shotguns. "Firearms" is used to describe both handguns and long guns.
The Massachusetts statutory scheme does not use the term handgun at all, but rather uses "firearm" to
cover all short-barreled weapons capable of firing bullet or shot. Mass. Gen. Laws Ann. ch. 140, § 121 (1974).
The coverage is thus more restrictive than the category of weapons that can fire "ammunition"¾which
is defined to include cartridges with substances designed to incapacitate, such as tear gas. Id. Although
used repeatedly in the statute, neither "rifle" nor "shotgun" are defined at all.
8. 1906 Mass. Acts, ch. 172, § 1. In 1911, the prohibition was extended to unloaded handguns, 1911 Mass.
Acts, ch. 548, § 1, and, in 1926, purchase of handguns was limited to those persons having carrying licenses
or a special purchase permit. 1926 Mass. Acts, ch. 395, § 3. The firearm regulation statute was gradually
refined over the next forty years and varying penalty structures were attached.
9. Mass. Gen. Laws Ann. ch. 140, § 129B (1974).
10. Within the framework of these requirements, "carry" does not include mere momentary possession,
and "carrying"does not include behavior at one's home or place of business. See text accompanying
notes 28-29 infra.
11. Mass. Gen. Laws Ann. ch. 140, § 131 (1974). A person may not obtain a license to carry a handgun or
a license to possess and carry a machine gun if he is an alien, has been convicted of a felony or the unlawful
use, possession, or sale of narcotics or harmful drugs, is a minor under eighteen, or is a minor over eighteen
without the written consent of his parent or guardian. Id.
12. The requirements for this permit, and the scope of discretion allowed the licensing authority, are formally
identical with those for the license to carry. See id. § 13 IA.
13. Id. § 131E.
14. Michigan, Missouri, New Jersey and North Carolina now have some variety of point of purchase restraint.
See Mich. Comp. Laws Ann. § 28.422 (1970); Mo. Rev. Stat. §§ 564.630,.640 (Supp. 1967); N
J. Stat. Ann. § 2A: 151-32 (1974); N.C. Gen. Stat. § 14-402 (1969). Regulation of individuals who own
or possess long guns is also exceedingly rare in this country.
15. Mass. Gen.,Laws Ann. ch. 269, § 10 (1970).
16. Id.
17. Id. Proponents of Bartley- Fox argued-and our study of 1974 prosecutions confirmedthat this mandatory
penalty was routinely evaded where applicable by failing to enter a finding that the defendant was a repeat offender.
18. A similar minimum was added to the separate penalties for the illegal possession of a sawed-off shotgun
or machine gun. Id. § 10 (c) (Supp. 1976).
19. Compare id. § I 0(a)(4), with id. § 10 (1970).
20. Id. § I 0(a)(4)(5) (Supp. 1976).
21. Another salient difference, of course, is that most such statutes are directed either at repetitive offenders
or at crimes that are considered particularly heinous.
22. For example, those individuals lacking a license to carry a handgun will probably also lack an FID card
and therefore may be chargeable for illegal possession of a firearm, which does not require a mandatory sentence.
And because an FID card is all that is required to carry a long gun, all those guilty of a violation of this rule'
will also be chargeable under the possession section. Once the defendant is convicted of illegally carrying a firearm,
however, the minimum sentence cannot be avoided through bargaining.
23. Mass. Gen. Laws Ann. ch 269, § 10(l) (Supp. 1976).
24. Id. § 10(a); cf. id. ch. 119, §§ 61, 83 (1969); id. ch. 276, §
87 (1972) (laying out separate procedure for juveniles).
25. Id. ch. 140, § 121 (1974). The law does not, therefore, extend to models, starter pistols, or
cap pistols, no matter how realistic, even if these weapons had been used to assist in the commission of a felony.
26. Commonwealth v. Bartholomew, 326 Mass. 218, 93 N,E.2d 551 (1950) (weapon fireable after "relatively
slight repair, replacement, or adjustment"). Although the statute does not expressly define "rifles"
or "shotguns" and therefore does not explicitly extend the firing capacity test to those weapons, the
courts have always read a similar constraint into prosecutions based on such other forms of guns.
27. See Commonwealth v. Fancy, 349 Mass. 196,207 N.E.2d 276 (1965).
28. Mass. Gen. Laws Ann, ch. 269, § 10(a) (Supp. 1976).
29. Commonwealth v. Atencio, 345 Mass. 627, 631, 189 N.E.2d 223, 226 (1963); "cord, Commonwealth v. Morrissey,
351 Mass. 505,222 N.E.2d 755 (1967).
30. 356 Mass. 85,248 N.E.2d 279 (1969).
31. Id. at 87, 248 N.E.2d at 280.
32. Commonwealth v. Jackson, 1976 Mass. Adv. Sh. 735, 750.
33. In Jackson, the SJC expressly denied the relevance of "the absence of knowledge as to the unregistered
status of the firearm." It is unfortunate that the issue has been stated in such a fashion. The statutes under
analysis concern the licensing of individuals to own, possess, or carry firearms; they do not pertain to
the registering of the weapons themselves. An individual cannot be unaware of his own status as licensed
or unlicensed; he might, however, be unaware of the licensing requirement itself. Some of the earliest cases under
the mandatory sentence law were resolved on precisely these grounds, with courts concluding that the Commonwealth
had not yet given adequate notice¾at least to out-of-state nonresidents visiting
or passing through. Presented in this fashion, the notice issue may still be open.
34. Commonwealth v. Boone, 356 Mass. at 87,248N.E.2d at280.
35. See Commonwealth v. Gizicki, 358 Mass. 291, 264 N.E.2d 672 (1970); Commonwealth v. Miller, 297 Mass.
285, 8 N.E.2d 603 (1937).
36. See Commonwealth v. Boone, 356 Mass. at 86-87, 248 N.E.2d at 280.
37. Mass. Gen. Laws Ann. ch. 140, § 129C (1974), as amended (Supp. 1976). The SJC did not
analyze this list of exemptions in Commonwealth v. Jackson but rather noted that "[a]lthough
there will no doubt be instances where a person found carrying an unlicensed firearm cannot be convicted under
§ 10(a), it would be inappropriate at this time to try to anticipate those situations." 1976 Mass. Adv.
Sh. 735, 739 n.3.
38. See Commonwealth v. Davis, 359 Mass. 758,270 N.E.2d 925 (1971). Refusal to present the appropriate
permit upon request of a police officer can result in the forced sale of the weapon, see Mass. Gen. Laws
Ann. ch. 140, §§ 129C, 129D (1974), and criminal penalties. Id. ch. 269, § 10(i) (Supp. 1976).
39. This subsection was prepared with the assistance of Lorraine S. Blair, who conducted the cited interviews.
40. Interview with judge J. John Fox, in Boston, Mass., June 18, 1975; see Address by judge J. John Fox,
in U.S. Conference of Mayors, Proceedings of the Second National Forum on Handgun Control 31-32 (1976):
The black hat is a hard core criminal. They have been committing crimes for years and some of them always will
. . . We are the white hats. All of us in this room, all the victims of crime, the instant victim and all the rest
of us. This law is a first signal to us that the legislature and the judiciary are thinking of us as well as the
criminal in the courtroom . . . . This new law is the first signal to the'-brown hats. These are the several hundreds
of thousands of youngsters who have been committing. crimes because we have taught them that crime does pay¾and by the way, they are etting away with murder, too. We have taught them this: We
have misled them because there has not been sentencing for crime.
41. Interview with David Bartley, former Speaker of the Masschusetts House, in Lowell, Mass., Feb. 20,1976.
42. Judge Fox and Dr. John Eller of Speaker Bartley's staff met with members of the State Police, the head of
the Police Chiefs Association, members of the Gun Owners Action League and of the Massachusetts Sportsmen's Council,
and other interested parties to discuss the drafting of the statute and to secure their eventual support. Interview
with Dr. John Eller, in Boston, Mass., Mar. 2, 1976. Although local gun owner groups supported the law, it has
been criticized by national groups and publications. The difference in opinion may stem from the fact that many
states do not presently have any regulation of gun ownership, and especially not of long gun ownership;
because Massachusetts already regulated this area, local groups were responding only to a proposed change in the
penalty structure.
43. The procedure by which bills are handled in the Massachusetts Legislature is as follows: the bill is read
initially in the chamber of the sponsor and is then reported to the appropriate legislative committee; if the bill
is reported upon favorably by the committee, it is read for the second time; if the bill is reported unfavorably,
the legislature may override the report, although this is rare; after the second reading, floor debate on the bill
will occur; upon a third reading, the bill is voted upon, usually by voice vote; if the vote is favorable, the
bill is "engrossed" and sent to the other legislative chamber; if the bill is also engrossed there, it
is returned to the originating chamber for enactment; passage there is followed by a vote on enactment in the second
chamber; bills passed in both chambers are sent to the Governor for approval.
44. Two weeks after the legislature enacted the law, Governor Sargent, in a rather unusual maneuver, returned
the bill to the House, suggesting a set of amendments that would have added a complete ban on cheap, low quality
handguns. The Speaker ruled these amendments out of order, and the bill was then reenacted without change. After
similar steps were taken in the Senate, the Governor signed the reenacted bill. Most of those voting against the
bill at this stage were members of the Black Caucus. Interview with Dr. Eller, supra note 42; see note
45 and accompanying text infra.
The new penalties were scheduled to take effect in January 1975, but in early November 1974 judge Fox and members
of Bartley's staff urged the Speaker to introduce further legislation that would delay the effective date for three
months. The group felt that there had not been sufficient publicity about the new penalties due to preemption of
the media by campaign coverage, busing controversies and commercial holiday advertising; also, a special brochure
describing the law had not yet been released. In addition, there was evidence that officials throughout the criminaI
justice system were not fully prepared to respond to various demands and pressures engendered by the new law. Memorandum
to Speaker Bartley from judge J. John Fox, Dr. John Eller and Phil Aube, Nov. 11, 1974. The Speaker introduced
a bill providing for a suspension of the new penalties until mid-April 1975. The Public Safety Committee moved
the date back to April 1, 1975, and this "emergency bill"¾which had
been introduced the day after the law had taken effect¾was signed on January
28, 1975.
Although the bill was quickly engrossed by the House on January 16, enactment by the Senate required another
eleven days because of a series of "diversionary tactics" by individuals who supported the mandatory
penalty but feared that the postponement would leave no carrying law in effect until April. Interview with David
Locke, in Boston, Mass., Apr. 4,1976.
Bartley-Fox was further amended in April 1975 to provide that the Commissioner of Public Safety notify each
license holder at least ninety days before the expiration of that license. See Mass. Gen. Laws Ann. ch.
140, § 131 (Supp. 1976). This revision also attempted to reword part of the act to define more clearly the
behavior penalized by the law and the nature of the official permits that constituted adequate authorization to
carry specified weapons.
45. Telephone conversation with Representative Mel King, Apr. 6,1976. The members of the Black Caucus opposed
the law because they were concerned about police arrest practices, the likelihood that their constituents would
not learn about the law's provisions, and possible discrimination by licensing authorities against minorities.
Interview with Representative Doris Bunte, in Boston, Mass., Apr. .1, 1976. Most members of the Caucus also opposed
the concept of mandatory sentencing.
46. See note 44 supra.
47. The Speaker's in-house activities centered on arranging a series of public meetings throughout the state
and on developing and distributing a press coverage kit. On February 26, 1975, press kits were mailed to approximately
four hundred media outlets in Massachusetts and to a number of outlets in contiguous states. The kit included pamphlets
about the law, stories about various aspects of the law, and radio and television spots. In May 1975, a further
press release from Speaker Bartley was sent to travel editors, setting out those requirements for carrying a gun
that were applicable to nonresident visitors. Memorandum to Speaker David Bartley from Mr. Timothy Taylor, Jan.
26, 1976.
A rough tabulation of the results of these efforts, prepared by the Speaker's office in January 1976, revealed
that a total of 4,789 inches of news stories, features and columns had appeared in Massachusetts newspapers between
March I and March 31, 1975. And in the period beginning two weeks before and ending two weeks after April 1, 1975,
the Speaker's office received 1,049 requests for further information about the law. Id.
The Advertising Club of Greater Boston spearheaded a public service campaign to inform the public about the
law. Beginning in April 1975, radio and television stations donated approximately three hundred hours for spots
and commercials. Letter from Paul R. McDermott, Executive Director, The Advertising Club of Greater Boston, to
Speaker David Bartley's office, Jan. 21, 1976. The Club prepared five newspaper advertisements, which appeared
in approximately twenty daily newspapers, as well as two magazine advertisements, which appeared in a variety of
publications in the Boston, Worcester and Springfield markets. Additionally, forty thousand posters printed in
English and Spanish were circulated in commercial establishments and public buildings. Id.
48. One example is an article that carefully explained that only an FID card was required to carry an unloaded
rifle or shotgun but that a full license to carry would be necessary if the long gun were loaded. See Sunday
Herald Advertiser, Mar. 30,1975, at 20, col. 4. The significance of such inaccurate publicity is demonstrated by
the fact that in one case monitored in our court sample the police prosecutor made exactly the same argument. In
fact, if one has an FID card, then the further license required for a loaded long gun is a hunting license, and
the penalties for violation are unrelated to Bartley-Fox. See Mass. Gen. Laws Ann. ch. 269, § 12D (1970).
A survey by the project of local coverage of the law in one Boston newspaper found that most of the early articles
inaccurately described the law's scope in some respect, although accuracy sharply improved over time.
49. 1976 Mass. Adv. Sh. 735.
50. 1976 Mass. Adv. Sh. 763.
51. A public welfare offense was defined as one that involves no moral turpitude or direct injury to individuals
and that does not require that the defendant be aware of the law and his noncompliance therewith. Brief for Appellant
at 7, Commonwealth v. Jackson, 1976 Mass. Adv. Sh. 735.
52. Id. at 70-71, 72-74. In the appendix to his brief, Jackson listed comparable offenses elsewhere and
their penalties. He did not include, however, a number of jurisdictions whose firearm regulations have some mandatory
aspect, such as those in Hawaii, Maryland and the Virgin Islands.
53. 1976 Mass. Adv. Sh. at 744.
54. Id. at 747.
55. The court held that, because the statute did not impinge upon a fundamental right, it did not require strict
scrutiny. Id. at 751-52.
In its amicus brief, the Civil Liberties Union of Massachusetts argued that the statute denied due process on
several grounds not raised by the defendants because, inter alia: (1) it drove discretion down to the lower
levels of the criminal justice system where haphazard and arbitrary standards for proceeding are likely to exist,
beyond judicial review; (2) arresting officers might be encouraged to exercise discretion in taking extenuating
circumstances into account before making an arrest, thus avoiding the operation of the mandatory penalty in certain
cases; (3) many citizens, as well as many tourists, could be expected not to be aware of the registration procedures
required by the law, and the rigors of the mandatory penalty were therefore inappropriate; and (4) the statute
posed a strong likelihood of ensnaring an inordinately large number of persons of innocent intention in its overbroad
net. Brief for Civil Liberties Union of Massachusetts as Amicus Curiae at 22-26, Commonwealth v. Jackson, 1976
Mass. Adv. Sh. 735. The SJC did not address most of these arguments in either the Jackson or McQuoid
opinions.
56. Commonwealth v. Jackson, 1976 Mass. Adv. Sh. at 754. The court accepted the prosecution's argument that
[i]t may be, as a practical matter, that a triail judge is best able to determine what sentence an individual
defendant deserves. But no trial Judge can measure the effect of criminal sentences in aggregate. It is the legislature
which is functionally better suited to determine those limits and to establish policy restrictions. A court may
have the power to hear evidence in an individual case or perhaps several cases involving similar. crimes. But only
the legislature has the machinery systematically to gather statistics on crime rates, and to obtain general data
which is either not admissible, impracticable to receive, or not suited to an adversary-type hearing.
Brief for Appellee at 24.
57. 1976 Mass. Adv. Sh. at 766.
58. Article 30 of the Declaration of Rights provides:
In the government of this Commonwealth, the legislative department shall never exercise the executive and Judicial
powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of
them; the judicial shall never exercise the legislative or executive power, or either of them: to the end that
it may be a government of laws and not of men.
59. Brief for Appellant at 20-27, Commonwealth v. Jackson, 1976 Mass. Adv. Sh. 735.
60. 1976 Mass. Adv. Sh. at 758.
61. Some statistics are available in the Annual Report to the justices of the Supreme judicial Court by the
Executive Secretary, which each year provides short descriptions of the Massachusetts courts and summary statistics
on their workloads. And the Department of Probation's central files resemble a clearinghouse for such data; however,
attempts to use those files for system-wide statistical analysis have repeatedly been stymied. Thus, no centralized
system of judicial statistics exists from which a researcher can extract information on specific cases as they
proceed through the court system.
62. For convenience, the following terminology is adopted: "Firearm violation" refers to a complaint
for the carrying or possession of a firearm or possession of a sawed-off shotgun. "Gun related crime"
refers to complaints for homicide, assault, or robbery in which a gun was allegedly involved. Assaults are divided
into "complex assaults," which include a battery or allege special intents (such as to murder or rob)
and "assaults," which do not result in any injury. This distinction is made because the lower courts
do riot have trial jurisdiction over the complex assaults. See notes 86-88 and accompanying text infra.
"Gun charges" encompass both gun-related crimes and firearm violations; many charges that are not gun-related
crimes or firearm violations are included in the sample because they were lodged in prosecutions that included
some other gun charge. "Major felonies" refers to any charges over which the lower courts do not have
trial jurisdiction. In subsequent condensed analyses, "firearm violation only" includes a few cases in
which the only other charges were for traffic infractions.
63. The Boston lower courts are the Brighton, Charlestown, Dorchester, East Boston, Roxbury, South Boston and
West Roxbury District Courts, and the Boston Municipal Court¾whose jurisdiction
over crime parallels that of the district courts. Suffolk Superior Court encompasses these jurisdictions as well
as the Chelsea district, which is not a part of Boston and is not included in the sample. For a description of
the relationship between the lower and superior courts in the criminal justice system, see notes 86-88 and
accompanying text infra. All eight courts are hereinafter referred to as either "lower" or "district"
courts.
The Center initially considered a survey of the entire court system. However, we anticipated that such an effort
would yield uneven results at best¾in part, because of definitional inconsistencies¾and would require enormous follow-up efforts as a result of missing or incomprehensible
data and uncertainty about incident dates. That such problems were inevitable was substantiated by our review of
surveys that were made, apparently without follow-ups, by Dean junior College's Police Science Institute, the Chief
judge of the Superior Court and The Boston Globe. E.g., Boston Globe, Mar. 20, 1976, at 4, col. 4. For example,
several of the "dangerous weapon in possession" cases reported in the surveys turned out, upon investigation,
to involve knives and thus were not covered by the amendment.
Perhaps most, important from our perspective, a survey could not yield the case-specific information essential
for detailed analysis and for linking lower court cases to their related records at other stages in the criminal
justice process. Nor could such a survey quantify the patterns of prior practice. We therefore determined that
only on-site data collection could be adequate for our purposes¾a condition that
necessarily restricted our research to a limited number of lower courts. Although this geographical restriction
may limit the study's significance, the Boston courts handle over half the felony complaints brought in the state.
If anything, Boston's greater concern with crime control may make its criminal justice system the "maximum
limit case" for Bartley-Fox as a crime control tool. Moreover, because the study is concerned in part with
the courts' response to violent street crime, the urban center where such crime predominates is the correct point
of focus.
64. The original sampling plan had been to identify our cases from police records of arrests for firearm possession
or carrying, armed robbery, assault with a firearm and homicide by firearm. This was the approach taken in J. Conklin,
Robbery and the Criminal justice System (1972). In working with police records for our 1975 sample, however, we
discovered that for a variety of reasons this would not result in a complete sample of the complaints brought for
firearm offenses. For example, complaints for additional offenses that were brought against a subject already in
custody would not require any further arrest and would therefore not be logged in the arrest records; arrests on
warrants are logged under separate codes that do not identify the underlying offense. Thus, field staff soon shifted
to the alternative approach of reading through the docket books of each lower court to identify and investigate
any complaints that met our sampling criteria. Their reports were then reconciled with lists of possible cases
generated from police records.
For 1975, this process revealed only eleven gun-related cases on the police lists that had not been picked up
through the docket sweep. Of these, three, including one Bartley-Fox charge, were complaints denied by the clerk
and never entered in the docket book; such cases are included in our sample as dismissals. Therefore, only eight
cases were actually overlooked¾an error rate of less than two percent. Because
the sweep that generated the 1974 sample showed similar results when cross-checked, we feh justif ied in concluding
that each sweep was thorough and complete.
65. The word "allegedly" is meant to underscore the fact that in some cases included in the sample
the weapon used would not fit the statutory definition of a firearm. See note 26 and accompanying text supra.
66. Because nearly all prosecutions have some contact with the lower courts, either for a first trial or for
a probable cause hearing, and thus should be picked up by a docket sweep, we concluded that an independent sweep
of the Suffolk Superior Court docket was extremely unlikely to unearth many new cases appropriate for our samples.
Nonetheless, it is possible for a prosecution to be commenced by grand jury indictment and to proceed directly
to superior court. However, in reviewing a summary of all gun-related cases brought in the superior courts between
September 1974 and September 1975, prepared by the office of the Chief Judge of the Superior Court, we found no
Boston defendants indicted in Suffolk Superior Court on Bartley-Fox charges during our sample period who had not
been picked up during our lower court sampling.
67. Bartley-Fox does not apply to juvenates or the juvenile court level, see note 23 supra, and,
in any case, police arrest records suggest that juveniles accounted for less than 3% of firearmrelated complaints.
Similarly, a study of' robberies in Oakland, California, indicated that juveniles rarely used firearms in committing
robberies. Feeney & Weir, The Prevention and Control of Robbery, 13 Criminology 102 (1975).
68. A profile of arrest warrants was generated for most courts. Unsatisfied warrants were frequent for robbery
and assault, but only two warrants were discovered that included a Bartley-Fox charge. Defendants who came to court
and subsequently defaulted¾resulting in the issuance of a default warrant¾are included in our samples.
69. For example, in those cases in which a bail bond had been required, detennining when, and if, a defendant
had been released from detention was often difficult; oral motions were not recorded and the disposition of written
motions was often not noted; prosecutors almost never filed a notice of appearance; and information adequate to
identify the defense attorney was missing in the court papers for a large number of cases.
70. None of these eleven cases involved Bartley-Fox. Several clearly had been brought by special police, and
three prosecutions for assault may have been privately brought, without involving a Boston Police Department arrest.
71. Appropriate plans for the protection of the confidentiality of offender-based information were filed with,
and approved by, the Commissioner. This was in addition to our filing with the state's Criminal History Systems
Board.
72. In most of the tables that follow, percentage figures have been rounded off for simplicity of presentation.
73. This second approach is an interpretive exercise and has special strengths and weaknesses. On the one hand,
it allows us to take several steps closer to the charging and disposition process than quantitative, comparative
analysis from limited court docket data will permit. At the same time, however, the reader is more completely removed
from the analytic process and more dependent upon the researchers' sometimes intuitive evaluation of the qualitative
data, since the factors that led to a classification decision cannot be enumerated for each case.
74. See notes 25-36 and accompanying text supra.
75. In only one gun-related prosecution was a prison sentence imposed on the violation charge that was not concurrent
with the gun crime sentence, and that lower court sentence was dissolved when the case was heard on appeal in superior
court. In another case, a superior court judge sentencing a defendant in a narcotics case imposed a sentence for
the carrying charge that was to take effect after a stiff sentence for the narcotics charge had been served.
76. A defendant is "bound over" to the grand jury when, because of the seriousness of the charge,
the lower court does not have jurisdiction to decide the case but does determine that probable cause to detain
the defendant exists. In such a case, bail is set and a grand jury then decides whether to issue an indictment.
See note 87 and accompanying text infra.
77. In comparing our 1974 court record sample to police arrest lists, we found a number of arrests reported
for armed robbery, weapon unknown, which could not be located after several searches in any Boston court. Thus,
a small part of the apparent increase in robbery prosecutions may be due to this gap in the record search. Additionally,
the decline in homicide prosecutions, although partially reflecting a drop in cases brought, is largely due to
the fact that one 1974 incident resulted in two separate deaths and produced a total of eight prosecutions, some
of which included a firearm violation charge. There was no case of similar complexity in our 1975 sample.
78 See Table 1. In both 1974 and 1975, the Suffolk County grand jury added firearms charges in six cases
that had been heard in the lower court only on the armed robbery charge.
79. See id.
80. Of the thirty-seven defendants found guilty of assault charges in lower court in our 1974 sample, in five
cases the finding was filed, two defendants were fined, five were given probation only, fourteen received suspended
sentences, and seven were sentenced to prison terms¾five of which were for more
than two years. Of the seven, five exercised their option for a new trial in superior court.
Of the twenty-one sampled defendants found guilty of assault charges in superior court, in six cases the finding
was filed, one defendant was given probation, three were given suspended sentences, and nine were sentenced to
prison terms¾three from one to two years, five for more than two years, and one
indefinitely. Thus, only eleven of the fifty-three cases that resulted in ultimate conviction by the court system
brought prison sentences.
81. This was particularly true in cases in which the assault charge accompanied a robbery charge. Those individuals
arrested for assault as well as for armed robbery are classified in this study as armed robbery offenders.
82. See Mass. Gen. Laws Ann. ch. 276, § 55 (1972). In 1974, 102 of 196 assault cases followed through
the court system were closed by dismissal.
83. See Table 11.
84. Deterrence theory would suggest that a clear perception of the consequences of this shift could have a significant
impact on the occurrence of firearm assaults. Although that proposition can only be evaluated by reference to crime
incidence statistics, the sharp decline in the number of assaultive crimes that reach the stage of prosecution
would certainly be consistent with such an effect.
85. Variations on these themes¾stated as conclusions, predictions, or research
questions¾have repeatedly appeared in proposals for the study of the impact of
Bartley-Fox, as well as in debates over its purported impact to date. One of the earliest examples is a discussion
by F. Zimring, Massachusetts' New Mandatory Minimum Sanction for Gun Law Violators: A Preliminary Research Design
6-10 (U.S. Dep't of justice, May 30, 1975) (technical assistance assignment for the Law Enforcement Assistance
Administration). See also Silverglate, The Case Against the New Gun Control Law, Real Paper (Boston), Feb.
18, 1976, at 19.
86. See generally E. Powers, The Basic Structure of the Administration of Criminal justice in Massachusetts
ch. 3 (1973).
87. This is the typical step after a "major violator" has been arrested, although direct indictment
is legally permissible. Corey v. Commonwealth, 364 Mass. 137, 301 N.E.2d 450 (1973); 30 Mass. Practice § 683
(1970),
88. Our follow-up of police arrest records for robbery, assault and firearms violations demonstrated that, whatever
the theoretical range of discretion not to charge, police arrests that reached the stage of booking the suspect
were invariably followed by an attempt to swear out a complaint. Such complaints were nearly always issued, although
in isolated instances¾fewer than two percent of all cases studied¾the
complaint was denied by the clerk or revoked at a subsequent hearing before a clerk or judge. Such denials or revocations
are treated as dismissals in the current analysis.
89. See A. Blumberg, Criminal justice (1970); National Advisory Commission on Criminal justice Standards
and Goals, Courts ch. 3 (1973); D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966);
Sudnow, Normal Crimes: Sociological Features of the Penal Code in a Public Defender's Office, 12 Soc. Prob. 255
(1966). For a somewhat different perception of the Boston process, see S. Buckle & L. Buckle, Bargaining for
Justice (in press).
90. Exceptions occur in situations in which the sentence is clearly the minimum likely, given the charges, -and/or
the defendant is in prison already or has not been released yet on bail.
91. In the absence of this practice, most such cases would probably be dismissed outright, sometimes on the
merits and sometimes "in the interests of justice." The continuance, which may include unofficial probation,
therefore functions as an informal sanction; in fact, many practitioners argue that judges often continue without
a finding the cases of defendants who would be acquitted on the merits¾but who
are certainly in no position to object to a continuance in anticipation of dismissal. Another indication of the
judge's perception of the case is whether court costs were assessed.
92. In addition, several cases were dismissed with costs, continued for dismissal with costs, or placed on file
with a guilty finding¾dispositions that do not preclude the existence of sufficient
evidence for a guilty finding. These dispositions totalled approximately 8% of the 1974 cases with a carrying violation
charged. See Table 111. Thus, the "guilty rate" may be read as somewhat higher than the formal
conviction rate.
93. At the superior court level, the grand jury declined to indict in an additional eight cases and the defendant
was discharged in another seven cases. Overall then, 43% of those charged with carrying a firearm were released
from that charge.
94. See notes 25-36 and accompanying text supra.
95. This 69% breaks down as follows:
| Outright dismissals with costs assessed |
3.5%
|
| Continuances for dismissal, with costs |
2.5%
|
| Guilty , filed |
2.0%
|
| All other guilty |
43.0%
|
| Bound over, probable cause |
17.0%
|
| Indicted |
1.0%
|
| |
69.0%
|
See Table III. As noted above, it is difficult to decide whether continuances and dismissals. with costs
should be interpreted as "effective" findings of guilt or as informal "warnings" to those who
would otherwise be acquitted.
96. Of these four, two are serving their carrying violation sentence concurrently with a sentence for another
charge or for another crime.
97. See Table III.
98. Fifty percent of the nongun felonies were drug offenses. Because many "drug busts" occur at the
home or place of business of the suspect, any firearm found in the suspect's possession will only support the misdemeanor
charge of possession. The concentration of simple possession charges in this category reflects this fact, as 37%
of the possession charges were accompanied by a drug charge.
99. This partly reflected the fact that "possession" included all long gun offenses, because at that
time there was no separate charge for carrying a long gun.
100. See Table III.
101. See Table II.
102. See notes 79-83 and accompanying text supra.
103. See Table III.
104. Nine defendants accepted lower court sentences. Most had very serious prior records and/or several serious
charges pending against them; some were on parole when arrested.
105. To date, there have been five dismissals and six acquittals among the forty-six cases in which Bartley-Fox
was the most serious offense charged. See Table VI. We were able to get background information on three
of the dismissals before the fieldwork phase of the study concluded: one case was dismissed because the defendant
died; one dismissal came when it was established that the defendant had been at work when arrested (he was subsequently
convicted of illegal possession); and another dismissal was the result of a successful motion to suppress. Given
the time constraints of this study, we were unable to construct individual profiles for the acquitted defendants.
We noted, however, a rather surprising pattern in the outcomes to date: most acquittals have come in trials before
judges, as jury trials have produced relatively few acquittals. Eleven of the sample superior court cases in which
Bartley-Fox was the most serious charge are the subject of long-term defaults. Two defendants received suspended
sentences when their charge was reduced to simple possession, Finally, eight defendants facing only Bartley-Fox
charges have been convicted, receiving at least the mandatory minimum penalty. In addition, as Table VI will demonstrate,
twenty-two of thirty-four superior court Bartley-Fox cases that involved other felony charges have resulted in
prison sentences; six of the twelve cases not resulting in Bartley-Fox convictions nonetheless produced prison
sentences on other charges. Thus, the vast majority of Bartley-Fox cases are resulting in prison sentences at the
superior court level.
106. The sharp drop in charged firearm violations breaks down as a very sharp decrease in the number of cases
in which the firearm violation was the most serious charge, a smaller reduction in the number of gun-crime prosecutions
that included a firearm violation charge, and a very sharp drop in the number of nongun felony prosecutions that
included a firearm violation charge. See Table IV.
107. See Table I.
108. See Table IV. These figures represent the total number of cases in the 1974 and 1975 sample totals
for the columns of "Firearm Violation Only," "Felonies Not Gun-Related," and "Traffic
Offenses."
109. See id. These figures represent, respectively, the total number of cases in the carrying and possession
charge categories for the columns of "Firearm Violation Only," "Felonies Not Gun-Related,"
and "Traffic Offenses."
110. The unauthorized carrying of along gun was formerly a "possession" violation but is now a "carrying"
violation within the purview of Bartley-Fox. See text accompanying note 19 supra. We had supplemental profile
data on forty-eight of the fifty possession charges brought outside the context of gun crime prosecutions sufficient
to determine that 24% of these cases involved the carrying of a long gun. Using this knowledge to adjust the 1974
figures produces an estimated drop in possession prosecutions of 52%.
111. See Table IV.
112. One further characteristic, which, although still not definitive, is certainly provocative, is that the
entire reduction in volume of carrying prosecutions came in the four Boston courts that handle most of the serious
crime, most of the firearm crime and most of the firearm violations. One might have expected that if arrest and
charging discretion were increasing in scope this would operate most powerfully in the court areas with the lower
crime rates. The four lower crime rate courts, however, actually showed a 30% increase in carrying prosecutions.
113. See Table V. In presenting the profile data generated from the probation record analysis, we have
limited the discussion to the cases studied that included carrying charges. We attempted to locate probation records
for each case in the 1975 sample that was brought in one of the participating courts and succeeded in 95% of the
cases. For several cases at one court, however, the information we obtained was limited to the fact that the defendant
had no prior criminal record and did not include any background description. Constraints of time and resources
persuaded us not to attempt to locate each case in the 1974 sample brought in one of the participating courts but
to curtail our efforts at the three busiest courts somewhat. Thus, we took smaller samples averaging 60% of the
carrying defendants at each court. in this manner, we hoped to achieve some representation for each court in the
sample. Again, roughly 95% of the cases that we set out to locate were located. Although the two smaller participating
courts are somewhat overrepresented in the final sample, they remain dwarfed by the samples drawn at the larger
courts¾175 of 209 firearm violation defendants.
114. "Occupational area" refers to the defendant's stated area of skill or interest. "Unemployed"
therefore reflects only those who could give no occupation at all. Many defendants who gave an occupation were
nonetheless unemployed at the time they were interviewed for their probation work-up. The category "other"
includes housewives as well as individuals not in the work force because of disability or retirement.
115. A "minor" record was defined as one which did not include more than three prior court proceedings,
a conviction on a major felony charge, or a sentence of incarceration. Individuals who had previously faced only
traffic infraction charges¾not including more serious traffic offenses such as
operating to endanger¾or who had only long outdated arrests for drunkenness on
their records were included in the group with "no record."
116. This was true even though the 1974 probation sample underrepresents the courts with the greatest number
of black defendants. The difference in percentages, however, is not quite statistically significant once one discounts
for variations in the amount of missing data.
117. We did not ignore the broader question whether arrests were made but not followed with either carrying
or possession complaints. Our analysis of 1975 police lists of arrests logged as weapons violations located every
arrest in a lower court docket. Although no slippage between stationhouse and courthouse was detected, this cannot
rule out the possibility that some arrests were "reversed" by the police prior to the filing of their
booking sheets. Police arrests do not enter the Boston Police Department central record system until the booking
report is filed. Thus, an individual "detained" at the police station until he produced the appropriate
license and then released would not enter the file, nor would an individual released for other reasons. Our check
would have picked up, however, any cases in which the police subsequently had decided not to press charges further.
118. See note 88 and accompanying text supra.
119. See Table VI. Our records do not indicate an explicit "no bill" in two of these cases
but rather only that the carrying charge, upon which jurisdiction was declined, did not reappear in the superior
court, This may reflect an earlier exercise of prosecutorial screening or perhaps a less than perfect linkage of
superior and lower court records.
120. In addition, to date, two Bartley-Fox cases from our sample have been dismissed on the prosecutor's motion
in Suffolk Superior Court, including one case in which the defendant was deceased.
121. For a description of previous efforts at surveys, see note 63 supra.
122. Letter from the Deputy Administrative Assistant to the Chief justice of the Superior Court to Harold Banks
of The Boston Herald Traveler, Mar. 26, 1976.
123. Review of related probation records indicates that the defendant in this particular case is facing other
relatively serious charges and has a significant prior record. This suggests that there may be some other reason
for the repeated postponement of disposition. However, consistent with our decision not to contact any parties
involved in an active case, we must rest with this speculation.
124. See note 123 supra. It may be that the cases on which these anecdotes were based were actually
pre-Bartley-Fox in origin and therefore allowed the judge in question to "put on a show" without, in
fact, violating the law. It is also possible that cases were subsequently disposed of in accord with the law, or
even that the defendants are somehow in default. The cases may have "disappeared" from the dockets, although
our police arrest list follow-ups were intended to double check against this contingency and all cases on that
list were located. Finally, of course, the stories may be stories, based on misunderstanding, misperception,
or hypothetical discussion.
125. See Table III., The figure given for dismissals includes dismissed cases and cases continued for
dismissal. This percentage would be slightly lower if assessing court costs were treated as implying guilt.
126. See Tables 11, 111.
127. See Table III.
128. See notes 79-81 and. accompanying text supra.
129. This is the equivalent of five cases with some other felony charge and six cases with only carrying charges
in 1975.
130. But see Table VIII and related text infra, suggesting that this is an overestimate.
131. Two of the nine attorneys were located and explicitly refused to be interviewed.
132. We have already reported that several of these cases grew out of arrests at the defendant's home or business
and that these defendants were convicted on the proper charge, possession of a firearm. Another case stemmed from
police misunderstanding of the law: the defendant had an FID card, but the police thought that a loaded rifle required
a license to carry. In a number of these cases the evidence was clearly inadequate to connect the weapon to this
defendant; in several such cases, a codefendant was convicted of illegal carrying or of having the weapon under
his control. The ballistics report in 25% of the cases indicated that even with minor adjustment or repair the
weapon could not be fired and thus did not fall within the statute.
133. These included cases in which there was a challenge to the propriety of the search, conflicting testimony
over the defendant's contact with the weapon, or a more attenuated version of one of the available defense arguments.
134. We are not, of course, in a position to treat the cases for which we have information as an unbiased sample
from the whole pool of fifty-three defendants facing only Bartley-Fox complaints who were discharged. There remained
fourteen defendants for whom we had insufficient information. Probation records of some of these defendants showed
substantial prior records; these cases, at least, need not be considered potential "sympathy" cases.
135. See Table VI I. The 69% figure assumes that the reasons for dispositions in the unknown cases would
parallel those for the known cases. The 62% estimate assumes an "influence rate" for the unknowns double
that of the knowns. We were able to construct follow-up profiles for ten of the sixteen defendants who faced other
felony charges and who were released on their Bartley-Fox charge by the lower court. In four robbery cases, it
appeared that there was no basis for conviction on the carrying charge. In one drug case, the attorney felt that
judicial unhappiness with the law was a factor in the outcome. In these cases, the defendant was convicted or bound
over on the central felony charges. In three assault cases, it also appeared that the charge could not be sustained.
In the two remaining assault cases, the attorneys felt that, although they had an arguable line of defense, judicial
discretion was a definite factor. This 30% "discretion factor" would, if applied to the total of sixteen
felony defendants released on their Bartley-Fox charge, yield an estimate of four or five cases in which discretion
was a significant factor¾confirming the similar estimate for "traditional
discretion" reached in the statistical portion of our analysis. The analysis of Table VI I I, infra, suggests
that the sympathy factor did not operate much differently in 1975 than in 1974 and that the increase in
acquittals is actually the product of greater defense efforts in cases that previously would have been "settled."
136. Similar results were found by breaking prior record into several categories and using three charge-seriousness
factors¾major felony, minor felony and no felony. The categories have been collapsed,
however, into "Some Additional Felony" and "No Other Felony" for convenience of presentation
and to increase the number of cases in each cell.
137. A "significant record" is defined as that of a defendant who has been charged in lower court
on more than three separate occasions, has been convicted of a major crime, or has been previously incarcerated.
"No record" refers to defendants who have no record of any kind, two or fewer traffic infractions, or
outdated convictions for drunkenness.
138. In most cases, therefore, the defendant would "admit to sufficient facts" in order to expedite
the case and to gain some good will at the point of sentencing.
139. See Table VIII.
140. Moreover, of the four defendants who received the equivalent sentence after appeal, the sentences of three
of those defendants were concurrent with either their present incarceration or the sentence being imposed for another
crime.
141. As noted earlier, see note 105 supra, the surprising pattern to date has been that sample cases
tried before juries have consistently resulted in convictions, while most acquittals have come in trials before
a judge only.
142. These cases are implicity linked to the problem of notice, or knowledge, described at notes 30-32 and accompanying
text supra.
