Daniel L. Feldman

Archive for the ‘Criminal Justice Policy’ Category

Gun Violence: Who Should Pay?

In Criminal Justice Policy, General, National Politics, Policy on July 2, 2013 at 5:51 pm

In April 2013, I sent the following as a proposed Op Ed piece to the New York Times:

THE POLITICS OF GUNMAKER ACCOUNTABILITY

By Daniel L. Feldman*

Hardly does the public hear about proposals to make gun manufacturers financially liable to victims of gun violence when tragedy results from the manufacturers’ careless distribution of their product. When a car manufacturer’s negligence, along with a driver’s, helps cause an accident, the victim can sue both. But right now, since most perpetrators of gun violence don’t have money, the random victim bears the cost, while businesses that profit from such sales get off scot-free.

Politicians allied with the gun lobby have successfully painted the effort to impose financial accountability on gun manufacturers as radical, and thus have kept it outside the mainstream of public discourse. As a recent illustration, Republicans blocked nomination of a candidate for the D.C. Circuit Court, claiming that she had demonstrated her “extreme” views by having worked on a lawsuit against gun manufacturers a decade earlier.

But there is nothing extreme, from a legal or policy point of view, in holding gun manufacturers financially liable for supplying their product to dealers who they know or should know consistently “leak” guns to the criminal market. Indeed, a conservative Republican judge on the New York Court of Appeals, writing a decision in 2001 denying financial relief to gun victims, noted that were gun victims actually to succeed in establishing such facts, gun manufacturers “might well” be liable.

Crime gun tracing data collected by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) showed quite clearly in 1999 that less than two percent of gun dealers leaked the majority of guns to the criminal market, and the manufacturers and distributors know or have reason to know which ones they are. But they continue to supply them with the product.

So beginning in 2003, with the Tiahrt Amendment the NRA got Congress to suppress ATF data revealing the gun industry’s negligence in supplying the criminal market. Two years later Congress enacted the Lawful Protection of Commerce in Arms Act, essentially immunizing the industry from liability for such negligence altogether. The current state of the law, then, should be seen as extreme: an extraordinary exception to deep-seated traditional common law principles that increases the damage to public health facilitated by the worst elements in the American gun industry.

Full financial liability for negligent distribution of their products would give gun manufacturers an incentive to supply only those gun dealers who sell responsibly – the vast majority, in any case. Such a change in the law would assure a substantial reduction in the number of victims.

Even if the Second Amendment had said “the right to sell arms shall not be infringed,” gun manufacturer tort liability would still be constitutional, just as liability for libel and slander remains constitutional notwithstanding the prohibition against “abridging the freedom of speech, or of the press.” The NRA, however, primarily the voice of its financial backers rather than of its members, treats threats to the profits of the industry as more “extreme” than restrictions on gun ownership. On at least one occasion, it awarded an “F” to the most visible proponent of the Brady Law, but an “F-minus” to the sponsor of state legislation to impose tort liability on gun manufacturers.

Thus, the NRA has succeeded in keeping gun manufacturer tort liability on the margins of the gun control conversation. In an honest and rational debate, even those who believe that the Second Amendment creates a general right to bear arms would have to acknowledge that no gun control initiative trespasses less on the Second Amendment than manufacturer tort liability. Rational discourse on this subject should shame Congress into repealing the Tiahrt Amendment and the Protection of Lawful Commerce in Arms Act.

 

 

*Mr. Feldman, an associate professor of public management at John Jay College, served as a member of the New York State Assembly from 1981 to 1998, and in March convened and moderated a panel discussion, “Gun Violence: Who Should Pay?,” at John Jay with U.S. Rep. Adam Schiff (D-Cal.), who recently introduced legislation to repeal the statutes mentioned above; Michael Cardozo, the New York City Corporation Counsel, who has sued gun dealers and manufacturers on behalf of the City; Jonathan Lowy, director of the Legal Action Program of the Brady Center to Prevent Gun Violence; Elizabeth Holtzman, former Member of Congress, District Attorney, and NYC Comptroller, who initiated discussion of gunmaker tort liability more than two decades ago; and David Yassky, NYC Taxi Commissioner and former City Council Member, who in his earlier capacity sponsored the New York City law intended to impose such liability.

—————————————————

According to my search of the New York Times archives, the last time they mentioned the Protection of Lawful Commerce in Arms Act was in 2008. However, within weeks of my submission, which they did not print, they covered the subject in an article by Jim Dwyer (May 28), an Op Ed by Robert Morgenthau (June 23), and an editorial (June 29). I am pleased that the Times is giving attention to the issue.

[note that although the results below say “1-10 of about 617 Results,” examination of the results past the first 10 do not actually refer to the Protection of Commerce in Arms Act]

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1-10 of about 617 Results

  1. 1.     U.S. Appeals Court Rejects City’s Suit to Curb Guns

That law, the Protection of Lawful Commerce in Arms Act, banned all suits against the gun industry except those in which a plaintiff could prove …

May 1, 2008 – By ALAN FEUER – New York Region – Article – Print Headline: “U.S. Appeals Court Rejects City’s Suit to Curb Guns”

  1. 2.     A Law That Keeps Gun Makers Smiling

The law signed that day, the Protection of Lawful Commerce in Arms Act, has smothered lawsuits by cities around the country, including by New …

May 28, 2013 – By JIM DWYER – N.Y. / Region – Article – Print Headline: “Keeping Gun Makers Smiling”

  1. 3.     A Gun Maker Moves On

3 days ago This outrageous law, called the Protection of Lawful Commerce in Arms Act, can only be envied by other industries whose products might affect …

June 29, 2013 – By THE EDITORIAL BOARD – Opinion / Sunday Review – Article – Print Headline: “A Gun Maker Moves On”

Suing, or Taxing, the Gun Makers

20 hours ago It was necessary to put the Protection of Lawful Commerce in Arms Act into effect to prevent unwarranted and misdirected lawsuits designed to …

July 1, 2013 – The New York Times – Opinion – Article – Print Headline: “Suing, or Taxing, the Gun Makers”

  1. 5.     U.S. Court Rejects New York Gun Lawsuit

That law, the Protection of Lawful Commerce in Arms Act, banned all third-party suits against the gun industry except for those in which a …

April 30, 2008 – By ALAN FEUER – N.Y./Region

Smith & Wesson Is Fighting Its Way Back

A gun-friendly administration as well as a new law signed last fall by President Bush — the Protection of Lawful Commerce in Arms act — that …

April 11, 2006 – By LESLIE WAYNE – Business – Print Headline: “Smith & Wesson Is Fighting Its Way Back”

Let Shooting Victims Sue

They went to work and, the next year, Congress passed the Protection of Lawful Commerce in Arms Act, severely reducing the legal liability of …

June 23, 2013 – By ROBERT M. MORGENTHAU – Opinion – Article – Print Headline: “Let Shooting Victims Sue”

  1. 8.     Judge Clears Way for City to Sue Gun Companies

The judge ruled that the new law, the Protection of Lawful Commerce in Arms Act, does not apply to the city’s lawsuit because it falls under a …

December 3, 2005 – By WILLIAM K. RASHBAUM – New York Region – Print Headline: “Judge Clears Way for City to Sue Gun Companies”

  1. 9.     Lawyers, Guns and Mayors

The Protection of Lawful Commerce in Arms Act would shield irresponsible firearms manufacturers, wholesalers, dealers and trade …

February 24, 2004 – Opinion – Article

10. Votes in Congress

Protection of Lawful Commerce in Arms Act: The bill would make gun manufacturers and dealers immune to lawsuits stemming from the misuse …

April 13, 2003 – New York and Region – Article

http://query.nytimes.com/search/sitesearch/#/Protection+of+Lawful+Commerce+in+Arms+Act/

Centralization of power

In Criminal Justice Policy, New York State Government, New York State Politics, Policy on September 16, 2012 at 2:18 pm

Two years after I returned to my normal life in the Assembly after the 1989 race for District Attorney, the U.S. Attorney for the Eastern District of New York convicted Mel Miller for cheating clients of his law firm out of profits they made on a transaction.  Two years later the federal Court of Appeals reversed the conviction, holding that the clients had no clear right to the profits in the first place. Under New York State law, Miller had to give up his elective office when he was initially convicted of the felony. The law has no provision for returning his office to him upon the reversal of such a conviction.

Stanley Fink and Mel Miller, as Speakers of the Assembly, wielded enormous power over members’ staff allocations, member items, and even which of their bills would become law. However, they led their Democratic majority as small “d” as well as large “D” democrats: they were good at judging what policy direction the majority of our caucus wanted to pursue, but checked to make sure they were right – and no member of the Democratic caucus hesitated to disagree, even forcefully, with those Speakers behind the closed door of our conferences. Some members, like me, even had open and public disagreements with the Assembly leadership, and were promoted, not punished. In my effort to change New York’s transactional immunity law to the much more typical state and federal “use immunity” law, I fought against Mel Miller when he chaired the Codes Committee. New York prosecutors had explained to me how it allowed some criminal defendants to get away with crimes – with murder, in the case of Delissa Carter – because it immunized them from prosecution related to any event about which they testified before a grand jury. I failed to change the law, but the New York Post praised me for my effort and lambasted Mel. Nevertheless, he gave me the first committee chairmanship at his disposal when he became Speaker.

Stanley had told committee chairs, “I decide the budget. You decide everything else.” This was mostly but not entirely true. First, the committee chairs always included two or three nitwits, and no Speaker allowed them to exercise any significant power. But those were exceptions. More generally, no legislature could have a dozens of legislators each deciding how much money to allocate to individual parts of the budget: to education, prisons, health, and so forth. Naturally the committee chair for each such area would tend to “break the bank” on behalf of the constituencies he or she most deals with, and to try to solve the problems for which he or she had most responsibility. Someone has to be able to weigh the great variety of needs against each other, and settle on allocations that would not, in the aggregate, bankrupt the state.  However, Stanley and Mel carefully consulted committee chairs for the more detailed information and therefore superior grasp of budgetary nuance each chair was likely to command, and took that information and nuance into serious consideration in shaping their decisions. On the other hand, while committee chairs made policy in their respective substantive areas, they were only permitted to do so within the general parameters of what the Democratic majority caucus would allow, and the Speaker enforced those limits.

But in my very first year as chair of corrections, I negotiated significant changes to the kinds of sentences low-level drug offenders would serve. Larry Kurlander, Governor Cuomo’s Criminal Justice Coordinator, Chris Mega, the Republican chair of the Senate Committee on Crime and Correction, who became my good friend thereafter, and I agreed to establish shock incarceration and earned eligibility, two programs that significantly reduced time actually incarcerated for many inmates. We each understood the range of choices we were each respectively allowed, but that range was broad enough so that prior to our negotiations most of our colleagues probably never even heard of the programs we decided to approve.

After Mel had to relinquish his office, things changed. My preferred candidate for Speaker, Jim Tallon, from Binghamton, would doubtless have continued in the mold of Stanley and Mel. But Jim’s gentlemanly qualities deterred him from the aggressive campaigning that might have won the job. Although Saul Weprin was also an extremely nice man, his key backers, Michael Bragman and Sheldon Silver, provided enough aggressive politicking on his behalf for Saul to win overwhelmingly.

Weprin died less than two years later, and may well have been more seriously ill than we recognized even from the start of his speakership. His counsel, Ben Chevat, moved to consolidate power – whether truly on Saul’s account, or in the interests of Bragman and Silver, remains unknown.

Although they were paid out of the Assembly’s central staff allocation, not out of my committee budget, I had been accustomed to selecting my committee staff and expecting them to follow my direction, unless of course they offered ideas I liked, which they often did. A few months after Saul’s accession to the Speakership, my program associate, Dick McDonald, shocked me by informing me that he could not work on a policy project I had asked him to pursue (I no longer remember the subject). He explained that Carol Gerstl, his “team leader,” had decided against it, and that Chevat had been informed that they were now to take direction from their staff chain of command, not from their committee chairs.

I collected my colleagues who chaired Codes, Judiciary, and Government Employees, all of whose staffs reported to Gerstl, and demanded a meeting with Weprin. Chevat tried to meet us, but we bypassed him, and explained to Weprin that he would have four immediate committee chair resignations if our power to direct our committee staff was not restored. Weprin immediately agreed.

When Silver succeeded Weprin, however, sometimes subtly and sometimes more overtly, central staff gradually usurped much of the power of committee chairs anyway. This did not improve my relationship with Silver, or endear us to each other.

 

 

How a politician publicly supports shortening sentences for drug dealers, and survives anyway

In Criminal Justice Policy, New York State Government, New York State Politics, NYC Politics, Policy on September 6, 2012 at 8:27 pm

In my first few years representing the 45th Assembly District, constituents regularly called me to complain about drug dealers peddling their wares in front of a building on Avenue K near Coney Island Avenue. The building stood just a block northern of my district, but the unsavory atmosphere there troubled my nearby voters. In response, I would call the captain of Brooklyn’s 70th Police Precinct, who would send officers to make arrests.

However, weeks later my constituents would call again, complaining that “they let the drug dealers out: they are back on Avenue K again.”

Back in Albany, Speaker Fink asked members of our Democratic caucus who similarly complained that judges let drug dealers go free how, then, we managed to increase our state prison population from 12,500 in 1972 to 40,000 by the early 1980s? I think he understood, and I gradually learned, that judges did lock up many of those drug dealers. Other drug dealers just replaced them very quickly, because so many addicts wanted those jobs to help pay for their own supplies.

Indeed, many a judge would sentence a drug dealer, after a first felony arrest, to time served waiting for trial and probation. But the addicted dealer, quickly back on the street, would be just as quickly arrested again. This time, the Second Felony Offender Law would require the judge to sentence the dealer to prison for at least two years.

In an earlier time, dealers peddling heroin would try to carry too small a quantity at a time to constitute “felony weight,” so that judges could continue to sentence them to probation. But dealers in the cocaine and crack era seemed to have less sense, and generally carried large enough quantities to be hit with felonies.

I began to understand that with about 600,000 addicts in the State, we would never run short of drug dealers. With 40,000 inmates, we needed to cannibalize higher education funding to help defray the cost of the State prison system; we could not very well incarcerate several hundred thousand inmates and keep the State solvent. Therefore, massive incarceration of low-level non-violent addict/sellers was not going to solve our drug problem.

Like voters throughout New York City and New York State at the time, mine were not generally anxious to hear that we should stop locking up drug dealers. But I told them anyway. Because I had consistently voted for the death penalty (a decision I made then to help preserve the legitimacy of the State government in the face of an increasingly rebellious citizenry), because I had championed other initiatives sought by law enforcement, even in the face of opposition by my own Democratic Assembly leaders, and because I had helped and supported my constituents on landlord-tenant issues, consumer issues, property tax issues, and transportation issues, I was able to carry my message without jeopardizing my reelection. I may even have persuaded some.

When arguing with my constituents, however, I tried to couch the message not so much in terms of the criminalization of people who did not fit standard criminal profiles except in terms of feeding their addictions, the destruction of families, the waste of human lives, or the unfair treatment suffered by minorities. Rather, I pointed to the need to use expensive prison space for violent criminals, the increased tax burden, and the decrease in college scholarship aid likely to be available to their children.

I did not succeed in enacting my legislation to repeal the Rockefeller drug laws. Eleven years after I left the Legislature, though, others completed that mission. I like to think that I helped lay the groundwork.

Chairing the Committee on Correction: Prisons and Jails

In Criminal Justice Policy on January 27, 2012 at 1:52 pm

In 1988, with my blessing, New York opened its first “maxi-max” prison facility, Southport Correctional, in Chemung County, near Elmira. Not only were we running out of solitary confinement units to house violent and otherwise disruptive inmates, Commissioner Tom Coughlin and I felt that we could improve on the unofficial system of distributing “bad” inmates and officers to the worst facilities. We thought that this prison, comprised entirely of solitary confinement cells, would provide a more humane alternative to the old system, based – unofficially – on beatings. In retrospect, I am not sure we were right. Some prison experts feel that solitary confinement tortures inmates psychologically in ways that involve crueler punishment even than physical abuse.

In any event, back in 1990, the correction officers’ union, then Council 82 of AFSCME, wanted me to investigate complaints by the officers at Southport. George Winner, my Republican colleague in the Assembly who represented the area, accompanied me on the visit. Shortly after our arrival, the correction officers and union officials had us don white plastic garments that covered us from head to toe. These “shit suits” were to protect us against “throwers,” inmates who would hide their own feces until they could throw them at officers. As we moved through the tiers, or cellblocks, we heard many of the inmates screaming or raving incessantly. Clearly, a substantial percentage suffered mental illness, whether brought on by solitary confinement or perhaps responsible for their in-prison violence in the first place.

The officers pointed out, however, that during the legally required hour of exercise outside their cells, the inmates moved to an outdoor area with flimsy fencing. Staffing levels did not suffice to assure security either. The conditions presented a serious danger of riot.

Immediately upon my return, I sent a memo to Commissioner Coughlin seeking urging attention to these issues. A few weeks later, nothing having been changed, the inmates rioted and took hostages. The incident, and my memo, made the front page of the New York Times. Fortunately, Commissioner Coughlin resolved the situation within a few days without any fatalities.

Assembly Member Winner, later a State Senator, had won a reputation for especially cutting remarks to Democratic opponents in Assembly floor debates. He and I, however, always enjoyed a cordial relationship. So a few months later, when he rose to debate one of my bills, I slowly and ostentatiously removed from the drawer of my desk in the Chamber the white plastic suit I had been saving for just that occasion. Winner, overcome by hysterics, could not proceed.

So far, I have discussed only maximum security facilities. Green Correctional, about 20 miles south of Albany, houses younger offenders, eighteen to twenty-one years of age, in medium security. This makes it harder to run than some of the maximum security joints: raging hormones and immaturity do not help keep a prison calm. Unlike maximum security prisons, where cells stretch out along lengthy corridors, or “tiers,” medium-security prisons house inmates in dormitory rooms, sometimes with ten or twenty inmates to a room. They still use razor wire to cover their walls, so they protect the security of the outside world in ways not significantly different from maximum security prisons, but the security inside the walls is looser. Minimum security facilities often house inmates who may leave during the day on work-release programs. There, the system presumes that the outside world needs less protection.

Jails run on different rules altogether. That does not necessarily mean they are easier to run. Even Clinton Correctional, the State’s largest prison, could fit into a corner of Riker’s Island, New York City’s enormous jail, which at its peak housed about 20,000 inmates and detainees. Criminal defendants awaiting trial stay in jail, not prison; defendants convicted of misdemeanors, who serve sentences of a year or less, also go to jail. Defendants convicted of felonies must serve more than a year, and they serve that time in prison, except for any credit they may be owed for time served in jail awaiting trial or sentencing. Short-term detainees, on average, cause more trouble than long-term inmates. Often, they have not yet acclimated to detention, and so have not figured out that bad behavior will make their stay less pleasant. They may not expect to stay long, and therefore in any event have less motivation to try to assure themselves a more pleasant stay by cooperating. For these reasons, I think it is more difficult to run Riker’s Island than to run any State prison.

Gun violence: why do Americans put up with this?

In Criminal Justice Policy, National Politics, Policy on October 28, 2010 at 10:00 pm

A friend recently sent me an article from the Washington Post published on October 24, 2010, in effect providing some updates to our chapter on guns in Tales from the Sausage Factory.

It got me angry all over again. The Washington Post made requests for police log listings in the District of Columbia and Prince George’s County in Maryland over the past 18 years, to obtain records of 76,000 guns recovered from criminals in those jurisdictions. Of those, the Post was able to track about 8700 to retail gun dealers in Maryland. One gun shop in the area, Realco, in a town called Forestville, was responsible for 2500 of those guns, including 300 used in non-fatal crimes and 86 used in homicides. No other Maryland dealer came close. For every 1000 guns Realco sold, 131 ended up recovered from crimes. For every 1000 guns three other more typical Maryland dealers sold, 41, 28, and 8 ended up recovered from crimes. And Realco’s guns show up in crimes much sooner after sale than guns from other dealers, another indication that the store had a greater tendency to sell them to people who intended to use them in crimes, or to sell them to other people (“straw purchasers”) who intended to use them in crimes.

Virginia was not different from Maryland in this regard, the Post found.  A very small percentage of Virginia gun retailers – about one percent — leaked most of the crimes guns sold in that state.

All this confirms that what we found ten years ago nationwide, based on studies available then, remains true. Since handgun manufacturers must keep records, by serial number, of which distributors bought the guns they sold, and distributors must keep records, by serial number, of which retailers bought the guns they sold, manufacturers and distributors know which retailers specialize in selling guns that end up being used in crimes. Yet, they keep selling to those retailers. I tried, as a legislator, to make those manufacturers and distributors legally liable for such negligence; and I was part of the effort by the Attorney General’s office, under Eliot Spitzer, to do the same. But the National Rifle Association beat us, and went us one better: they got Congress to ban the release of the gun-trace data from ATF (the federal Bureau of Alcohol, Tobacco, Firearms & Explosives) that we and other used back then to demonstrate the culpability of the gun industry. 

Which American politicians would admit to shielding the gun industry from liability for what amounts to facilitating death and injury to innocent people so that it can make more money? I very much doubt that the average NRA member would support this policy. The NRA’s policies reflect its funding sources, not its membership. Yet this is where Congress has permitted the NRA to take us. If you happen to read this before Tuesday, you might check to see where your member of Congress stands on this issue.