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Rebecca M. Coffee Dec. 9, 2012

I’m spending some time this weekend working on a case involving a client charged with violating a gun law. The case has no particularly aggravating facts at all, except for the way in which the handgun was carried. Client lawfully owned the gun, the gun was never discharged (the case doesn’t involve an allegation of violence, threats, or injury), and client wasn’t doing anything illegal, other than carrying the gun in a way that is prohibited by law. Client also wasn’t on her way to commit a crime – she was on her way home. She has no prior criminal record, has never been arrested before, works full time and is remorseful for her conduct. The offense is a criminal misdemeanor, and carries a maximum possible penalty of 9 months in jail and a $10,000 fine. There is no mandatory minimum penalty – in other words, the law does not require that the Judge give my client any minimum period of jail time or fine.

Mastantuono Law Office represents many clients charged with gun law violations – some more serious than others. One of the notable things that I have experienced in these types of cases is that some prosecutors will always recommend some amount of jail time for a gun case, regardless of the circumstances surrounding the case, or the individual characteristics of the charged person. The ultimate sentence is of course up to the Judge, but the prosecutor’s sentencing recommendation matters. A lot.

The merits of a prosecutor’s decision to enforce such a blanket policy are worth debating. On the one hand, they have discretion to do what they are doing, and there is unquestionably a problem with gun violence in our community. On the other hand, some cases are worse than others, and prosecutors risk losing credibility with a one-size-fits all policy. The appropriateness of such a policy is also debatable given the fact that our lawmakers have not seen fit to mandate a minimum jail sentence for gun law violations, while they have in other criminal statutes. Moreover, we have strong State and Federal Constitutional rights to keep and bear arms, which must co-exist with gun control laws, and the way in which they are prosecuted.

It is an interesting issue, and one likely to be discussed again on this blog.