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• THE WORST GUN-CONTROL IDEA HAS THE MOST SUPPORT

  Expanded background checks may have been defeated last month in the Senate, but one area of bipartisan gun-control consensus is gathering steam in American cities: tougher sentences, including mandatory minimums, for illegal firearm possession.

  Harsh proposals, backed by both gun-control advocates and Second Amendment absolutists, have been introduced in Illinois and Pennsylvania, home to the violence-plagued cities of Chicago and Philadelphia. Chicago Mayor Rahm Emanuel is campaigning for state legislation that would increase mandatory minimums for illegal gun possession from one to three years. In Pennsylvania, members of both political parties are championing a mandatory five-year-minimum sentence for any convicted felon caught carrying a gun, and now a separate bill that would apply a two-year minimum for illegal gun possession exclusively in Philadelphia.

  Advocates cite New York City's three-and-a-half-year mandatory minimum sentence as a model. "The NRA believes -- rightly -- that enforcing the law means prosecuting criminals to the fullest extent," New York Mayor Michael Bloomberg wrote last year.

  It's easy to see why such laws remain popular: Rampant gun violence persists, and city-dwellers want action. But a more cynical calculation is also at play. Politicians know the policies are ineffective, but continue to vote for them lest they be painted as soft on crime. Indeed, research demonstrates that mandatory minimums create unequal and sometimes unjust sentences. They have also helped make the United States the most incarcerated nation on earth.

  But the most basic reason for opposing mandatory sentences for gun possession is that they don't work. You often hear this argument regarding drug crimes, which are, admittedly, less menacing to society than illegal gun possession. But research shows that mandatory minimums are ineffective whether they be applied to unlucky dope fiends or gun-toting corner boys.

  "Mandatory penalty laws have not been credibly shown to have measurable deterrent effects for any save minor crimes such as speeding or illegal parking or for short-term effects that quickly waste away," writes University of Minnesota law professor Michael Tonry in the 2009 study "The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings."

  Take Massachusetts' 1974 Bartley-Fox Amendment, which mandated a one-year mandatory minimum for illegal gun possession. "Studies concluded that it had either no deterrent effect on the use of firearms in violent crimes or a small short-term effect that quickly disappeared," Tonry writes. He also evaluated 15 studies of California's 1994 three strikes law, perhaps the most famous mandatory minimum in the nation. Only three evaluations found that it reduced crime, and three actually concluded that it increased homicide rates.

  "Research over many years has shown that mandatory penalties are limited because they address severity of punishment, not certainty," says Jeremy Haile of The Sentencing Project. "Because most people engaged in criminal activity do not expect to get caught, few think about the penalties they will face if convicted."

  "The decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones," Tonry concludes.

  One reason for this is that, though they are intended to bring consistency and transparency to the justice system, mandatory minimums instead create disparity and confusion. Prosecutors use the threat of draconian sentences to compel guilty pleas to lesser charges behind closed doors and nail those who want their day in court as harshly as possible. Tonry cites a 2001 U.S. Sentencing Commission report to Congress finding that 96 percent of defendants charged with mandatory minimums and convicted at trial received the full sentence, compared to just 27 percent who pled guilty to lesser charges.

  Some of those sentences are profoundly unjust. Take the case of Weldon Angelos, a young Salt Lake City man sentenced to 55 years in prison for selling pot to an informant while allegedly carrying a gun. The judge called the sentence "unjust, cruel and even irrational" but his hands were tied by mandatory minimums. He urged President Bush to issue a pardon.

  It's not just individual stories, like Angelos', that indicate the illogic of mandatory minimums. It's the aggregate picture, too. More than one-and-a-half million Americans are behind bars, and six million more are under some form of correctional supervision. A 2012 analysis by Pew Charitable Trusts found that state prison populations rose more than 700 percent between 1972 and 2011. Mandatory minimums and other policies that increased sentences and time served "have been a key driver of prison populations and costs." Mass incarceration affects the country's poorest neighborhoods, the same ones most harmed by gun violence in the first place.

  "Gun laws passed today to stop tomorrow's suburban school shooter," Brennan Center for Justice's Inimai M. Chettiar warns at The Nation, "may well end up incarcerating more generations of young inner-city black men."

  In Chicago and Philadelphia, the new mandatory minimum proposals are encountering some opposition. The Chicago Sun-Times has editorialized against the Illinois measure, arguing that "the proposed longer mandatory sentence would do little or nothing to curb Chicago's violence. It would tie the hands of experienced judges who must be allowed to make common-sense exceptions to the rule."

  An analysis by The Chicago Reporter found that, had the currently proposed state mandatory minimums for illegal gun possession been on the books one decade ago, "Illinois taxpayers would have been responsible for, at a minimum, more than $760 million in additional incarceration costs related to gun possession convictions between 2000 and 2011."

  And while proponents of the legislation point to New York's declining murder rate, that city's decrease began well before the state's mandatory minimum law was implemented in 2006, as a report by Chicago public radio station WBEZ notes. Chicago's murder rate actually increased after the state passed its current one-year mandatory minimum law in 2011.

  In Pennsylvania, mandatory minimum legislation has won enthusiastic backing from Philadelphia District Attorney Seth Williams and the Philadelphia Daily News editorial board. But powerful Republican state Sen. Stewart Greenleaf, a one-time tough-on-crime proponent turned outspoken prison-reform advocate, has so far refused to back the bill.

  "I introduced most of the mandatory sentences in Pennsylvania over the years," he says. "We thought we would get really tough on crime, and reduce violent crime and have lower recidivism and things like that. Well, just the opposite happened ... All we did was fill our prisons up and violent crime continued to go up."

  Greenleaf chairs the Senate Judiciary Committee and will try to strip any mandatory sentences from the bill. Last year's five-year mandatory minimum proposal died in his committee. And other lawmakers might not be upset with that outcome.

  "They tell me privately that they don't want to vote for it, but that they feel compelled to vote for it because of the perception that they would be soft on crime ... but we're not being soft on crime. We're being smart on crime."

  This year, Sens. Patrick Leahy and Rand Paul have introduced a bill that would allow federal judges to bypass mandatory minimums. The laudable if painfully frustrated momentum to address gun violence should not obfuscate what is now clear to Americans across the political spectrum: Mass incarceration, most certainly including mandatory minimums, is folly.

  (This article originally appeared on the website of The New Republic magazine.)

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  COPYRIGHT 2013 THE NEW REPUBLIC

  published Sunday, May 05, 2013

  THE CURIOUS CASE OF MITCH MCCONNELL

  In 1964, an ambitious young student at the University of Louisville made an impassioned plea to his classmates, urging them to march in solidarity with Martin Luther King Jr. At the time, Kentucky was no haven for race reformers -- it was dominated by some of the same elements of the Democratic Party that vehemently rejected the very notion of civil rights. Nevertheless, this 20-year-old activist called for strong statutes, state and federal, to protect the dignity of minorities.

  "Property rights have always been, and will continue to be, an integral part of our heritage," he wrote in the campus newspaper, "but this does not absolve the property holder of his obligation to help ensure the basic rights of all citizens." The student's name was Mitch McConnell.

  Then, as now, the Kentucky senator was a dedicated Republican, but in his younger days, he was also a very high-minded one. As an up-and-coming activist, he declined to work on Barry Goldwater's reactionary presidential campaign. Instead, his biographer, John David Dyche, told me, he advocated for the civil rights supporter Henry Cabot Lodge Jr. His role model was Kentucky Republican Sen. John Sherman Cooper, an outspoken opponent of the Vietnam War who helped defeat a filibuster of the Civil Rights Act.

  He admired Lyndon Johnson's legislative mastery, Dyche said, and believed politics could serve a larger purpose.

  Nearly 50 years later, very few people in Washington would accuse McConnell of idealism. As one veteran Kentucky journalist explained, Democrats regard the Senate minority leader as "the ultimate Machiavelli," and with good cause. From the stimulus bill, to the 2011 debt-ceiling debacle (and its ultimate consequence, sequestration), to four years of stalled judicial nominations, McConnell's relentless obstructionism has mired the president in low approval ratings. There is no one the administration blames more for its troubles. And yet, when you consider McConnell's many small victories from another angle, they can start to look like defeats -- not just for his own onetime dreams of statesmanship, but for the long-term future of the Republican Party.

  McConnell is often described as driven -- after overcoming polio at the age of five, he threw himself into competitive sports. Following six years in Jefferson County government, he ran for the Senate in 1984. His campaign unleashed ads depicting a pack of bloodhounds chasing his opponent, who was supposedly running from his record. By the end of one ad, the poor guy had sought refuge up a tree, dogs snarling savagely at his heels. It was a pretty good metaphor for the ruthlessness that would come to define McConnell's Senate career.

  At first, McConnell had broad ambitions. His office was once home to the desk of Henry Clay, the Great Compromiser. (He even passed a resolution stating that the desk would always belong to a Kentucky senator.) An avowed internationalist, he resisted Jesse Helms' attempts to gut the foreign-aid budget. As chairman of the ethics committee, he undertook a dogged investigation of his fellow Republican, Bob Packwood, for charges of sexual harassment and assault.

  But over the years, he became increasingly loyal to an increasingly right-wing party -- and more and more obsessed with fund-raising. Kentucky's press and establishment remained Democratic until 1994, and so, the veteran journalist said, money "was the only way to get his message out." A longtime McConnell observer remarked that, even compared with other senators, McConnell "puts his election and tenure before everything else." McConnell himself likes to say, "You have to be elected before you can be a statesman." As his power in the caucus grew, his worldview shrank.

  By the time Barack Obama became president, all McConnell seemingly cared about was winning. "The single most important thing we want to achieve is for President Obama to be a one-term president," he famously told National Journal. His strategy was to keep Senate Republicans together to prevent the administration from accomplishing anything at all. Washington would look hopelessly inefficient, and he could convince independent voters that the stasis was Obama's fault. His strategy represented the complete triumph of short-term partisan thinking.

  On the surface, at least, it worked: He maintained impressive control over his caucus. His former colleague

  Chuck Hagel has called him "the smartest political thinker we have in our conference." In 2010, independents turned against Obama and gave Republicans control of the House.

  But there was a downside, even if it took some time to reveal itself.

  On the biggest issue of the last four years -- health care --McConnell also went all out in opposition. He bet everything that reform would fail, instead of huddling with anxious conservative Democrats to craft a compromise. The result was Obamacare, a historic achievement.

  A similar dynamic occurred with financial reform. Because of McConnell's obstructionism, Obama didn't have to make concessions to Republicans -- meaning that the bill was more substantial (and liberal) than it would have been otherwise. And while McConnell's procedural delays might have helped stall the president's agenda, they also helped make the Republican brand the toxic commodity it is today. Even McConnell's approval ratings in bright-red Kentucky are dreadful.

  Meanwhile, his own record has become almost tragically petty. The former internationalist is now the most fanatical Senate opponent of closing the military prison at Guantanamo Bay. Someone who has known McConnell for years told me he doesn't have a "racist bone in his body." But when McConnell was asked whether he thought Obama was a Christian, all he would say was: "I take him at his word." He admitted to The Washington Post with apparent pride that the country had indeed been held hostage by Republicans during the 2011 debt crisis. And when rumors surfaced that actress and Kentucky native Ashley Judd was considering a 2014 challenge, he moved quickly to crush her, although her candidacy was hardly a threat. A leaked tape caught him observing, "This is the Whac-A-Mole period of the campaign, ... when anybody sticks their head up, do them out." This was another good metaphor -- for how limited McConnell's political ambitions have become.

  McConnell once said admiringly of Henry Clay, "The compromises that he brought about probably pushed the Civil War off, first the one in 1820, then the one of 1850." This is the definition of short-term thinking. Today, we don't remember the Civil War being "pushed off" -- we remember that, as Abraham Lincoln said, the war came. For his part, Obama will be remembered as a two-term president who won reelection in an ailing economy and who passed a law providing access to health care for all Americans. McConnell's claim to the historic legacy he once yearned for might lie, ironically, in having made Obama's possible.

  (This article originally appeared in The New Republic magazine.)

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  COPYRIGHT 2013 THE NEW REPUBLIC

  published Friday, May 10, 2013

  GAY MARRIAGE OPPONENTS SHOULDN'T BE DEMONIZED

  One reason the idea of gay marriage, or "marriage equality," spread so fast is that it seems obvious once you think about it. It was a genuinely new idea when it first appeared in this publication in 1989.

  As was not the case with civil rights for African Americans, feminism -- or for that matter, gay rights themselves -- there was no long history of opposition to be overcome. The challenge was simply getting people to think about it a bit.

  Not everyone was immediately persuaded. Last month, Ben Carson appeared on Fox News' "Hannity" show to talk about gay marriage. Carson is the latest Great Black Hope for the Republican Party, which is quickly running out of African American conservatives to make famous. But Carson's appearance was not a success. He should have left bestiality out of it. And any reference to NAMBLA -- the "North American Man / Boy Love Association" -- is pretty good evidence that we have left the realm of rational discussion and entered radio talk-show territory. This alleged organization exists -- if indeed it exists at all -- for the sole purpose of being attacked by Republicans and conservatives on talk radio and television.

  Carson may qualify as a homophobe by today's standards. But then they don't make homophobes like they used to. Carson denies hating gay people, while your classic homophobe revels in it.

  He has apologized publicly "if I offended anyone." He supports civil unions that would include all or almost all of the legal rights of marriage. In other words, he has views on gay rights somewhat more progressive than those of the average Democratic senator 10 years ago. But as a devout Seventh Day Adventist, he just won't give up the word "marriage."

  But none of this matters. All you need to know is that Carson opposes same-sex marriage. Case closed. Carson was supposed to be the graduation speaker at Johns Hopkins Medical School. There was a fuss, and Carson decided to withdraw. The obviously relieved dean nevertheless criticized Carson for being "hurtful." His analysis of the situation was that "the fundamental principle of freedom of expression has been placed in conflict with our core values of diversity, inclusion and respect." My analysis is that, at a crucial moment, the dean failed to defend a real core value of the university: tolerance.

  The university's response was wrong for a variety of reasons. First, Carson isn't just another gasbag. He is director of pediatric neurosurgery at Hopkins. Pediatric neurosurgery! He fixes children's brains. How terrible can a person be who does that for a living? Yes, I know the flaw in this thinking: There is no necessary connection. As a character says in Mel Brooks's movie "The Producers": "der Führer vas a terrific dancer." But Carson didn't murder millions of people. All he did was say on television that he opposes same-sex marriage -- an idea that even its biggest current supporters had never even heard of a couple of decades ago.

  Does that automatically make you a homophobe and cast you into the outer darkness? It shouldn't. But in some American subcultures -- Hollywood, academia, Democratic politics -- it apparently does. You may favor raising taxes on the rich, increasing support for the poor, nurturing the planet, and repealing Section 14(b) of the Taft-Hartley Act, but if you don't support gay marriage, you're out of the club.

  Hopkins, as a private institution, may not have been constitutionally required to let Carson speak. But it was wrong for the university, once the invitation had been extended, to make Carson feel unwanted to the point of withdrawing. (In fact, it was wrong of Carson to let Hopkins off the hook in this way.)

  Behind the First Amendment is the notion that good ideas have a natural buoyancy that bad ideas do not. In fact, the very short (as these things go) debate about marriage equality demonstrates this. Denying Carson the right to speak was not just unprincipled. It was unnecessary.

  The proponents of marriage equality have not just won. They have routed the opposition. It's a moment to be gracious, not vindictive. There are those who would have you think that gays and liberals are conducting some sort of jihad against organized Christianity and that gay marriage is one of the battlefields. That is a tremendous exaggeration. But it's not a complete fantasy. And for every mouth that opens, a dozen stay clamped shut.

  In the state of Washington, a florist refused to do the wedding of a long-time customer "because of my relationship with Jesus Christ." Note that "long-time customer." This woman had been happily selling flowers to the groom. She just didn't want to be associated with the wedding. Now she is being sued by the state attorney general.

  DC Comics dropped writer Orson Scott Card's planned Superman book when thousands signed a petition demanding it because of his many homophobic remarks.

  Thought experiment: If you were up for tenure at a top university, or up for a starring role in a big movie, or running for office in large swaths of the country, would it hurt your chances more to announce that you are gay or to announce that you've become head of an anti-gay organization? The answer seems obvious. So the good guys have won. Why do they now want to become the bad guys?

  The decision of gay leaders to concentrate on the right to marry was brilliant. This wasn't an inevitable choice. They might have chosen some other strategy, such as getting sexual preference under the protection of the civil rights laws, along with race, gender, and so on. Choosing marriage totally undercut the argument of opponents that gay men and women were demanding "special" rights. All they wanted, supporters could say truthfully, was a right (to marry someone you love) that every other American already enjoys.

  But the focus of gay rights advocates on marriage is a historical accident, and to make support for marriage equality the test of right thinking on gay issues is absurd. In fact, the very idea of a "test of right thinking on gay issues," or any other kind of issues, is absurd. Gays, who know a thing or two about repression, ought to be the last people to want to destroy someone's career because they disagree. In their moment of triumph, why can't they laugh off nutty comments like Carson's, rather than sending in the drones to take him out?

  The first known mention of gay marriage is an article ("Here Comes the Groom" by Andrew Sullivan) commissioned by me and published in this magazine in 1989. And I would bet that there is no one born before 1989, gay or straight, who didn't, when he or she first heard the idea, go, whaaa? Many on reflection got used to the idea, and a majority of Americans now support it. The day will come, probably next Tuesday at the rate things are going, when previous opposition to the idea of same-sex marriage will seem bizarre and require explaining, like membership in the

  Ku Klux Klan in the youths of some old Southerners -- are there any left? -- on Capitol Hill.

  But we're not quite there yet. At the moment, simply opposing gay marriage doesn't make you a homophobe, any more than opposing affirmative action makes you a racist or opposition to settlements on the West Bank makes you an anti-Semite.

  The dean calls Carson's remarks "hurtful." They weren't hurtful to him, unless he's hopelessly oversensitive. The dean was just making a move in the great game of umbrage that has clogged American politics, where points are awarded for taking offense at something the other guy said. No one, when confronted with some opponent's faux pas, or some stray remark that can be misrepresented as a faux pas, ever reacts anymore with: "Who cares?" Instead, it's: "I am deeply, deeply offended by this person's remarks. She should drop out of the race immediately, or quit her job, and move into a nunnery to contemplate her sins. And we certainly can't let her speak at commencement because ..."

  Because what?

  (This article originally appeared in The New Republic magazine.)

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  COPYRIGHT 2013 THE NEW REPUBLIC

  published Saturday, May 11, 2013

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