- The Washington Times - Thursday, March 15, 2018

President Obama oversaw a steady decline in the number of convictions for firearm offenses that carried mandatory minimum sentences, according to a report released Thursday that underscores the low priority the last administration gave to pursuing gun crimes.

The U.S. Sentencing Commission said prosecutors’ use of the two main penalty enhancements under federal firearms laws dropped 24 percent from 2010 to 2016.

Researchers chalked up the decline to a 2010 memo from then-Attorney General Eric H. Holder Jr. giving federal prosecutors more flexibility on charging decisions, as well as a 2015 Supreme Court ruling that invalidated part of a law mandating 15-year minimum sentences for certain gun cases.

Daniel D. Roberts, a former assistant director of the FBI’s Criminal Justice Information Services division, said it could also be a matter of labor.

“Based on my 25 years in the FBI and running those programs, I think the decline you’re seeing is likely a resource issue associated with the number of federal prosecutors who are available to do those cases,” said Mr. Roberts, now the chief of police of the Franklin-Bingham Farms Police Department in Michigan.

He said unlike the FBI, U.S. attorney’s offices, which prosecute the cases agencies brought to them, didn’t get a post-9/11 funding bump, even as they had to deal with a new emphasis on terrorism cases.

Gun prosecution policy has reared in the wake of last month’s high school shooting in Florida, with some lawmakers calling for more cases to be brought against those who illegally acquire or use guns.

An inspector general’s audit found prosecutions of people who lied on their background checks fell under Mr. Obama.

Mr. Obama also issued 441 commutations for sentences that included firearms-related convictions, out of a 1,715 total commutations. He also delivered 10 pardons for sentences involving gun crimes.

Firearms charges are usually penalty enhancers, adding years to someone’s sentence if they carry a weapon while dealing drugs or engaging in another crime. The mandatory minimum sentence is five years, with higher penalties possible depending on the nature of the crime and the type of gun used.

Offenders convicted in 2016 of using a gun in drug trafficking or violent crimes received an average sentence of more than 12 years, the new report said. That was 13 months less than the average prison time in 2010, the report said.

Mr. Roberts said not all crimes involving guns show up in federal gun statistics, even if they are prosecuted. Sometimes state or localities will take the case, and other times — such as gang busts — charges were sometimes effectively treated as organized-crime cases.

“Those cases would be charged with everything that you can — enterprise charges, much like we used to do with the organized crime cases, with the mob cases,” he said. “Use the same RICO statutes, the same continuing criminal enterprise statutes and bring them against the violent gangs who are shooting the guns and killing people.”

But the sentencing report specifically cites Obama policy as cutting gun prosecutions, with the 2010 Holder memo a key breaking point.

Seeking to cut into mandatory minimum sentences, Mr. Holder overturned a previous policy that had pushed prosecutors to charge defendants with the most serious offense likely to result in a conviction.

The Holder memo instead said prosecutors could take into account defendants’ history in charging and sentencing decisions, allowing them to forgo some of the stiffer possible penalties.

Attorney General Jeff Sessions restored the most-serious policy last year, and the Justice Department says it’s already having an effect.

“Since he’s been AG, we have already increased federal gun prosecutions to a 10-year high and violent crime prosecutions to a 25-year high,” said department spokeswoman Sarah Isgur Flores. “But we are just getting started.”

The report also pointed to a Supreme Court ruling in 2015 that invalidated part of the Armed Career Criminal Act, which requires a mandatory minimum 15-year sentence for people with three or more serious convictions who try to illegally get a gun in certain cases, as partly responsible for the decline.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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