Jurisprudence

A Criminal Justice Reformer’s Case for Looser Gun Laws

Public defenders have found common cause with the NRA at the Supreme Court.

Exterior of the court on a sunny day
The U.S. Supreme Court in Washington on Nov. 5. Daniel Slim/AFP via Getty Images

There’s this case in front of the Supreme Court that haunts me a little bit: New York State Rifle & Pistol Association Inc. v. Bruen. It’s about whether it is too hard to get an unrestricted gun license in New York state. The plaintiffs say they should be able to carry their firearms wherever they want, not just to work or the gun range, and it seems like the court is inclined to agree with them, paving the way to looser gun laws. It makes me uneasy, because gun sales have spiked since the pandemic, and Kyle Rittenhouse was just found not guilty after shooting three people in the middle of a public street. But Sharone Mitchell Jr., a public defender in Chicago, sees it differently.

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Mitchell is one of a number of public defenders who’ve sided with Second Amendment activists on this case. They argue that restrictive licensing, combined with a police force that is eager to charge Black and brown people with weapons possession, adds up to mass incarceration, and that loosening gun restrictions might right a tremendous wrong. On a recent episode of What Next, I spoke to Mitchell about why he opposes laws criminalizing gun possession, how he thinks about his right-wing allies in this case, and what he believes government should be doing to stop gun violence. Our conversation has been condensed and edited for clarity.

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Sharone Mitchell Jr.: I see the people that we’re prosecuting. I think about the young man that I defended who had a gun in his bag that was licensed in another state and he accidentally took it to a bar, and his life was over. That ruined his life. He lost his job, he lost his housing, we had to go to trial. That ruined his life. I think it is understandable to look very early on at this approach and say, of course we should give people felonies for not possessing guns in the correct way. But when you really look at the results and you look at what’s actually happening on the ground, it’s tough to hold that same thought.

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Mary Harris: What would have happened to him if he was white and somewhere rural in Illinois?

“Put your gun back in your car. Come back.”

That’s it.

Yeah. That’s it. We ended up winning the jury trial, but he still went to jail. The jury looked at this and said this was a mistake, I don’t think this is felonious conduct.

But they made him fight for it.

He lost a lot. The system made him fight for it. And too often mistakes or bad judgment is treated one way in one place and another way in another place.

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You wrote an article, “There’s No Second Amendment on the South Side of Chicago,” in support of the New York public defenders who filed an amicus brief in this Supreme Court case. You talk about the disparate impact of gun laws not just in who gets ensnared by them, but where the enforcement occurs.

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Our offense is called UUW, unlawful use of a weapon. And there are different types of UUWs. But the lowest-level felony, the Class 4 felony, 33 percent of the charges statewide come from 11 communities in Chicago, 11 communities in the entire state.

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You look at the UUW numbers, you look at how it’s used in Chicago and how it’s used outside of Chicago—and you would think that guns only exist in Chicago. And you would think guns only exist in a small number of communities. And that’s not correct. In other areas of the state, that’s just not the way they approach that situation.

You say the ironic thing about the selective enforcement of gun laws is it’s precisely the people in the communities that get cracked down on who may have the most justified concern for their personal safety. For them, oftentimes gun ownership is part of a terrible downward spiral: Unsafe communities make people seek out weapons for self-protection. Then they get caught up in the justice system on a possession charge. Meanwhile, the police arresting them have done little to actually make their neighborhoods safer.

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If these are the communities where you see an uptick in violence, those seem to be the people who have a reason to carry. That’s not something that I do. I live on the South Side of Chicago. But it’s understandable, and I see it every day when I talk to our attorneys, that people are scared. They turn on the news every single day and they hear carjacking, robbery, murder, robbery, carjacking. And people are choosing to protect themselves.

We have this assumption that making things a felony disallows people from performing that act. And I just haven’t been convinced of that. At this point in Chicago, folks are not waiting for the government to tell them that they can carry. And I think too often we overestimate the power of the criminal justice system to solve problems or fix the things that we need. I think people are living under the assumption that because you’ve got this very complicated scheme for getting licensed, that means people aren’t going to carry. I think what it means is that people aren’t going to carry legally.

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I agree with what you’re saying about the systemic harm that you’re seeing from possession laws. And I think you’re right that when these laws exist, it’s Black and brown gun owners that get cracked down on. But I can’t help wondering if making it easier to have a firearm will keep people safer from physical harm from a gun.

See, I get you, but I just reject the idea that we’re making it easier to own a firearm. Because that’s not the reality of what’s happening in my communities. Even though we’re sending tons of people to prison, people still have easy access to guns. And even though CPD will take 12,000 guns off of these city streets, there are a hundred thousand guns that haven’t been discovered. So I think that’s my issue. My issue is I agree with folks who support the need for safety and want to use the government’s power to maintain safety. But that doesn’t mean I’m unwilling to be critical of the actual solution.

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You’re saying we can’t be safe because the zone is flooded with guns—that’s problem one.

I’m just talking about my community right now, and the clients that I see, the neighbors I see. I don’t think the current scheme makes it hard to get guns. It makes it harder to legally possess a gun. That’s true. But in the end, if somebody decides somebody just got shot in front of my house, or every time I watch the news I’m getting beaten over the head that I live in a hellscape, well, I’m going to possess a gun, whether the government tells me I can or not.

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And the question is, how do we respond to that? Again, I just think the way we’re doing it, in a way that is very targeted on a particular type of people who live in a particular type of place, people who the numbers suggest they’re not going to harm anybody are being thrown into prison and being given these felony backgrounds that are going to follow them forever.

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If you look at the population of Illinois prisons, there are more people in prison for weapons possession than there are for robbery. There are more people in prison for weapon possession than there is for kidnapping, more than arson or burglary or DUI or forgery or vehicle hijacking or retail theft. This is really becoming kind of the new war on drugs, where there’s a real problem, but our solution to the problem doesn’t actually fix the problem. In fact, it creates way more problems.

But when I think about possession of guns versus, say, possession of heroin, the difference to me is that there’s very little chance that your opioid is going to accidentally discharge on the street and kill someone. You don’t use a drug to defend yourself or to hurt someone else. It’s like a self-directed harm.

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So you can only kill yourself with drugs.

It’s just endangering other people to carry a gun, in a different kind of way.

Yeah, I think you’re right. Drugs and guns aren’t the same. My comparison is what we’re seeing is identification of a problem and a solution offered that has very little success at fixing the problem. And it’s exploding. You know, from 2014 to 2019, admissions to IDOC, Illinois Department of Corrections, gun possession went up 27 percent. Everything else went down 38 percent. Arrests were down, crime was down. As a result, we were sending less people to prison. But at that same time, the only offense that was going up was gun possession.

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Did that have any impact on the murder rate or suicide rate?

See, that’s the thing. Despite every single year increasing the amount of people that we put in prison or recovering guns, the murder rate continues to go up. And that’s because people are scared. So my solution isn’t like we should turn a blind eye to gun violence and let what happens happens. I’m saying, should we be giving people felonies for this? Should we be only enforcing this law in certain communities? And should we be thinking about solutions that are much more proactive, that actually identify folks who are at risk of harm, at risk of being shot, and actually give them what they need to keep communities safe?

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I wonder if you think about the strange bedfellows especially in this Supreme Court case, where there was an amicus brief filed by Bronx Defenders and others talking about their clients and how they are denied access to guns that they want, but they’re teaming up with the kinds of litigants who otherwise might not have their best interests at heart. How do you think about that? Do you worry that the Black and brown people who agree with this argument that’s being made at the Supreme Court are being used?

No. I don’t worry about that. I worry about the safety of my communities. I worry about the people that I represent, whose lives are being derailed by this scheme. I worry about the people who are victims and the families who are victims of gun violence.

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The strange bedfellows argument? It’s a complicated issue. I think that often we try to look at issues with red and blue glasses and we try to figure out what side is the conservative side and what side is the liberal side and where do you fit. But there are some issues that are so complicated that it’s not. And while I acknowledge that there are going to be people who hold different political views than me that may be on the same side of our fellow public defenders, I believe that we’re on the right side of this. And if there are other people that choose to be on that side as well, then that’s what they’ve chosen to believe.

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I noticed that Chicago came up in oral arguments. Justice Elena Kagan called it the world’s worst place when it came to gun violence.

Yeah, and I think it has one of the world’s worst strategies when it comes to gun violence. Ninety-five, 94, 96 percent of the money that we spend here in the region is focused on responses to gun violence, so police, prosecutors, defense attorneys, sheriffs, people that show up after the harm has happened. And 4 to 6 percent of the spending goes toward prevention. It goes toward actually stopping the harm or trying to stop the harm before it happens.

You know, we have models, we have examples of actually reducing violence in a nontraditional way. But we’re so enamored with this traditional idea of rounding people up, seeing if they have guns, putting them in prison or putting them on probation, taking their guns away. And we’re just addicted to this idea that it’s going to do something. And again, week after week after week after week, we see its failures.

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In your ideal world, what does the legal framework around guns look like?

I think it’s a framework that doesn’t include the criminal system. This idea that we criminalize possession of guns, I just don’t think it’s a working model. When somebody presents to the justice system, especially young people in communities that are experiencing high levels of violence, I just don’t think that putting them in prison is an effective response to that risk.

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We’ve seen models, interrupter models, violence prevention models, where people are identified to be at the highest level for shooting or being shot. They’re paired with people that can be a positive effect in their life. They’re given the counseling they need to make rational decisions, and they are offered opportunities for real economic future. I feel like that approach is a much more effective approach than indiscriminately sending people to prison and hoping it gets better, when it hasn’t gotten better for years after years after years.

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As a person who is on the South Side, who are in communities that suffer from harm, I want people to be held accountable for harm. But more important than that is I want the harm to stop happening. So I’m unwilling to just settle for “Oh, we’re holding people accountable,” if it’s actually not keeping us safer.

When we start talking about loosening the rules around guns, my fear is what happened in Kenosha with Kyle Rittenhouse, where you have a teenager who wants to carry a gun, wants to defend property, goes out into the world. Other people have guns. And the jury essentially seems to have said, well, everyone had guns, so it’s hard to tell really who’s the aggressor. And I worry that we’re setting ourselves up for much more of that, if we’re loosening the restrictions around who can have guns and where they can take them.

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I definitely understand us looking at the Rittenhouse case and trying to draw deeper conclusions about it. But the sad reality of the situation is that the vast majority of cases do not include a 17-year old white teen going to a protest and deciding he wants to play cop for day. And I think there’s a real danger in taking a case like that and drawing conclusions of the whole legal system, because that’s just such an outlier.

The Supreme Court seems to have a pretty good chance of taking the side of the gun and rifle folks in this case. But I wonder what’s going to change in Chicago, if anything, if this case succeeds.

I think we’ll have to see what the ruling is. What my hope is is that we start to pull away a little bit from these traditional approaches that have not kept us safe, that we really think about these violence interrupter models that really identify folks who are in trouble and try to resolve the situation. Because for me, the thing that I feel most strongly about is I see folks that are in struggle, and the system’s not giving them anything but more bad. Sticking somebody in prison for two, three, four years, putting them on probation, and then sending them right back to the same communities that they’re in danger is doing nothing to fix the problem. And we spend a fraction of our dollars on some of those interventions that actually get at the solution. So I’m hoping if something were to happen that some people would see as drastic, that we would take the time to be like, OK, we’ve got to redo this thing. What is the best way to spend our limited dollars, not just to seem politically tough, but to actually provide safety for those that are literally under the gun?

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