How to Start (Or Stop) a War on Crime: A Conceptual Cookbook

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

Imagine you are a career federal prosecutor that has just been elevated to Deputy Criminal Chief at the Department of Justice. Or that you have just been confirmed as Attorney General of the United States. Or that you are the newly elected President of the United States. 

Now imagine that there is a dangerous new weapon, or a deadly new drug, or powerful criminal organization that is laying waste to the nation. You have examined all of the data, policy papers, and consulted with leading experts. And you have concluded that one course of action is necessary: a dramatic increase in the prosecution, conviction, and sentencing of the offenders. Now what? What new policies should you craft and how should you implement them? How exactly does one go about waging a “war” on crime?

Now imagine, a decade later, that you have just been elected to Congress. Or that you have just accepted a job as the leader of a policy organization. You have campaigned (or applied) on a platform of criminal justice reform. There are far too many people prosecuted, and sentenced for far too long, that are outside the core of those inflicting society harms. This new war on crime has done more harm than good and must be slowed, narrowed, or stopped altogether. What next? How exactly does one go about stopping a war on crime?

This article I presented at the Firearms Law Works-in-Progress Conference in May seeks to answer all of the above questions, both in the abstract and by reference to the significant increase in federal firearms prosecutions beginning in the 1990s. It is the sequel to my last article, The Federal War on Guns: A Story in Four-and-a-Half Acts, which created a conceptual framework for thinking about the history of firearms criminalization, dividing it into four (or five) unique historical eras. This article builds on that work, but shifts from a historical to a policy axis, offering a new conceptual framework for thinking about the modern era of firearms enforcement. Its contribution, moreover, is not limited to thinking about firearms crime policy—its conceptual framework is built in such a way that it will add structure and value to academic discussions about any executive-branch crime enforcement efforts. 

Part I seeks to understand how exactly modern presidents and attorneys general—across both Republican and Democratic administrations—were able to increase prosecution rates so much so quickly. I extract, identify, and then explore the five necessary “ingredients” for an executive-branch war on crime: (1) ability: a broad statutory scheme authorizing the executive to act; (2) political will: broad social and ideological support for executive action; and (3) opportunity: the type of crime that is readily discoverable through policing and easily provable in a wide variety of contexts; (4) resources: institutional structure, infusions of money, and the marshaling of resources to target a specific crime or criminal element; and (5) orders: top-town directives, issued from Main Justice to federal line prosecutors, that dictate charging policies. Part II then considers the inverse. There were times, even during this era of firearms enforcement, when prosecution rates went down. There, I argue that this was the result of one or more countervailing ingredients: (1) discretion: the ability of line prosecutors and district judges to tailor their decision-making to the contours of each particular case; (2) advocacy: the work of career criminal defense attorneys, primarily in federal public defender’s offices, who develop and advance novel legal challenges to the federal criminal regime; and (3) reforms: social movements that shift political will and Congressional criminal justice reform legislation. As to federal firearms prosecutions, these countervailing ingredients bubbled to the surface fairly recently, from the 2010s forward, and have moderated the steep trajectory of the modern era of firearms crime enforcement.

The article’s contributions are relevant to both the current legal and political landscapes. Legally, as reflected in the Supreme Court’s narrow holding in Rahimi, coupled with its decision to deny certiorari in several felon-in-possession cases, it is evident that lower courts will have to grapple head-on with the consequences of the criminal statutory scheme and the executive branch’s enforcement policies in the coming months and years. Politically, now that President Biden has declined to accept the Democratic nomination, there are likely to be changes to executive branch approaches to crime in the coming year. This article provides an important framework for thinking about and critiquing those changes.