Why People Who Fail Gun Background Checks Usually Aren’t Prosecuted

by Robert VerBruggen

Yesterday on Fox News, Ted Cruz went after the Obama administration because “in 2010, 48,000 felons & fugitives lied and illegally tried to purchase guns, [the Obama administration] prosecuted only 44 of them.” He touted a 2013 bill he co-sponsored that, among many other gun-related provisions, would have created a task force and allocated $50 million over five years to prosecute more people who try to buy guns and are rejected during the background check.

As we’ve seen this week, the background-check system itself has some obvious problems. The failure to prosecute people after they fail checks is more complicated, but there is room for improvement.

Let’s start with the legitimate reasons these cases might not be prosecuted. One focus of conservative criminal-justice reform lately has been “mens rea,” or rules concerning the state of mind a person is in when he commits a crime. These rules distinguish, for example, someone who trafficked drugs on purpose from someone who didn’t notice someone else sneaking drugs into their bag at the airport. Higher levels of mens rea require people to realize not only what they’re doing but that what they’re doing is wrong. “Currently, the federal government can send men and women to prison without demonstrating criminal intent,” Cruz himself complained when introducing a bill on the subject just last month.

That bill would apply only to laws that don’t contain a mens rea standard. The federal law regarding background-check failures does have one, and it seems to be a sensible one: The person has to have knowingly lied about his criminal (or other disqualifying) background. One big reason the federal government doesn’t pursue more people is that those who fail checks often made innocent mistakes in answering the questions on the federal form, or at least can plausibly claim to have.

Here’s how the Justice Department itself put it in a report under the Bush administration:

These cases lack “jury appeal” for various reasons. The factors prohibiting someone from possessing a firearm may have been nonviolent or committed many years ago. The basis for the prohibition may have been noncriminal (e.g., a dishonorable discharge from the U.S. military). It is also difficult to prove that the prohibited person was aware of the prohibition and intentionally lied [on the form he filled out at the gun dealer]. We were also told that in parts of the United States where hunting historically has been part of the regional culture, juries are reluctant to convict a person who attempted to purchase a hunting rifle.

In other words, given limited prosecutorial resources and the mens rea standard, a lot of these cases just aren’t a priority and would be hard to prosecute anyhow. It makes sense when you think about it: It’s pretty dumb to have your name run through a background-check system at a gun dealer knowing you should fail, especially when you can buy a gun through a private seller with no check instead, so a lot of the people caught up this way likely didn’t do it knowingly.

That doesn’t mean, though, that there’s no potential for stepping up these prosecutions. Some recent reports have made me more optimistic about this than I was a few years back.

For instance, an audit last year found that they had fallen enormously since 2003, and noted:

In general, [U.S. Attorneys] most often prosecuted NICS denial cases when aggravated circumstances existed in addition to the prospective purchaser’s false “no” answer to at least one question on the Form 4473. An Executive Office for U.S. Attorneys (EOUSA) official told us and the Department confirmed in response to a draft of this report that their decisions reflected the application of the principle of the Department’s Smart on Crime Initiative that directs USAOs to prioritize prosecutions to focus on the most serious cases that implicate the most substantial federal interests.

This shift in the use of prosecutorial discretion deserves close scrutiny.

Also, as The Trace reported last year, some states that handle background checks themselves (instead of relying on the FBI) have been making more of an effort to arrest people and have seen results. It highlights Pennsylvania, where the police “decided to investigate every failed background check.” Investigations skyrocketed, and arrests doubled — but the number of investigations was more than quadruple the number of arrests in 2014, the year after the change, with the number of arrests about double the number of convictions. Then again, those are good proportions relative to the one Cruz highlighted.

So, yes, let’s make a bigger effort to find out what’s going on in these cases and see if more should be prosecuted. But don’t assume that all or even most of them should be, given the rights of the accused and our desire to focus punishment on the most serious offenders.

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