Balanced analysis of efforts to abolish state's Felony Firearm Statute

Hon. John G. McBain
Jackson County Circuit Court

In a recent article in The Legal News, John Cooper, executive director of Safe and Just Michigan, sets forth his support of legislation that would abolish Michigan’s Felony Firearm law.

This statute has been in place for more than 40 years. The article’s headline states, “Felony Firearm Drives Prison Population, Racial Disparities.” As a former Prosecuting Attorney of Jackson County, and a Circuit Court judge for almost 20 years, I think some balanced analysis is in order.

The Felony Firearm Statute provides that if a criminal defendant is charged with the commission of a felony and uses or possessed a firearm, that this offender faces a separate charge called “Felony Firearm,” which requires the judge to impose a mandatory two-year prison sentence. The defendant has to serve this sentence in addition to and separate from the sentence for any other crime under which he or she is convicted.

The Michigan Legislature implemented this law because it recognized that criminals who commit crimes with guns are the most dangerous offenders.

During my tenure as Jackson County’s Prosecuting Attorney, I often said, “Show me a criminal who commits a crime with a gun, and I will show you a homicide waiting to happen.” I also organized a Priority Prosecution Unit that targeted violent criminals for prosecution to the fullest extent of the law, including the Felony Firearms charge. Once convicted, these violent gun offenders got mandatory prison sentences, which took them off and kept them off the streets. The criminals got the message, and gun violence went down dramatically.

In fact, in 2001 the murder rate in the City of Jackson dropped to zero, something that had not occurred since the 1930s.

Violent criminals in Jackson County got the point. Carry a gun and commit a crime, especially a violent one, and you go to prison. Our Felony Firearm Statute, is one of the most efficient and effective tools that the criminal justice system has to reduce gun violence.

Mr. Cooper asserts that the two-year minimum mandatory sentence for a Felony Firearm conviction “takes the sentencing decision out of the hands of judges.” The statute does what good criminal statutes do, it promotes sentencing uniformity. And it sends a strong consistent message that if you commit a crime with a gun, you can be sure of a trip to prison for at least two years.

The statute also allows the prosecutor to plea bargain the Felony Firearm charges away in cases where they feel a two-year automatic prison sentence is not warranted. I found in my years as prosecutor and a judge that most prosecutors are circumspect about bringing Felony Firearm charges. Prosecutors mindful of the two-year minimum mandatory sentences only wanted it applied to the most dangerous criminals who were carrying a gun at the time of the offense.

Most criminal justice experts agree that a small number of violent criminals commit a disproportionately large amount of crime. When these violent criminals are in prison, this causes violent crime rates to go down, and people feel safe and secure in their communities.

John Cooper states “defendants sentenced under the Felony Firearm Statute are placing a multi-million-dollar burden on prison costs with no discernable return from a public safety standpoint.” Rather than questioning an obvious dividend, Mr. Cooper should ask: What is the societal cost of lenient sentences for violent criminals who commit new crimes with guns?

The answer is exploding murder rates and the escalation of violent crime.

When another victim of an illegal shooting dies on the street, or is maimed for life, the family and loved ones wonder how the criminal justice system failed them so badly. Then they return to their communities where the criminal gun violence rages on, and understandably they feel unsafe.

These same citizens understand what almost everyone know that it is not legal guns causing the problem, criminals committing violent crime with illegally modified, purchased or stolen guns commit the vast majority of gun violence.

Mr. Cooper, this is why effective prosecutors target violent criminals with the Felony Firearm Statute. When consistently and appropriately applied, it is one of the most effective crime reducing statutes in our criminal justice system.

Pre COVID-19, criminals convicted of Felony Firearm were not overcrowding our prisons. Crime rates and prison commitment rates have held steady and/or have been in decline for a number of years.

This last year, gun violence and murder rates exploded across our state and nation. In Chicago, gun crime is up 60 percent over last year. In New York City, illegal gun shootings have doubled over the last year, and homicides are up 33 percent.

Detroit recorded 327 homicides in 2020, up 19 percent from 274 the previous year, while illegal non-fatal shootings increased 53 percent from 2019.

Disturbingly, you suggest racial disparities in how the Felony Firearm Statute is used. As a former prosecutor and a current Circuit Court judge, I don’t see that same undercurrent, or racial bias in the charging or sentencing of gun offenders.

Ironically, you point out that “Courts in Wayne County convicted and sentenced 53.1 percent” of all the people incarcerated on Felony Firearm charges in Michigan. John Cooper would have us ignore the fact that Kym Worthy left the Wayne County Circuit Court to become the first woman and African American prosecuting attorney in Detroit. As a Democratic prosecuting attorney, she knows all about gun violence, and Detroit’s numbers show her success and progress, compared to the cities with much higher gun violence rates across the country.

Like many liberals, you are quick to imply racism at elected officials involved in these charging decisions, regardless of the facts, or the results, if it fits your narrative.

Mr. Cooper, I hope we can both agree that politics needs to be taken out of the discussion on who gets prosecuted when they have committed a violent crime with a gun. The criminal justice system is supposed to be blind and most of the time it is.

Your proposed elimination of Michigan’s Felony Firearm Statute is a form of gun control that is both irresponsible and not supported by the vast majority of citizens or criminal justice professionals.

In fact, most citizens in high crime areas don’t want the police de-funded, nor do they want gun packing criminals back on the street after only a slap on the wrist, and a short term of probation

Such sentences allow these gun packing criminals to very soon murder, rob, and engage in violent crimes once they are back on the streets with another gun in hand.

Most citizens support the policy of gun packing criminals, engaged in other felony activity going to prison for at least two years without passing “Go.” Even lenient leaning judges have to take some of the most dangerous offenders off the street. This is especially true in high crime areas where most of the gun violence involves African American offenders and African American victims. This isn’t racism. It’s a reality most liberals do not want to talk about.

Your aim to abolish Michigan’s Felony Firearm Statute comes at a time when there has been the largest upsurge of violent gun crime in the history of our country. And you could not be more off target in your analysis or conclusions.

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John G. McBain is serving his 19th year as a Circuit Court judge in Jackson County. He previously served as the chief judge of the Circuit Court.