Ehrlich Errs with Project Exile

February 12, 2003 • Commentary

In his “State of the State” address last week, Maryland Governor Robert Ehrlich passionately endorsed Project Exile, a federal gun‐​prosecution program originally developed in Richmond, Virginia. According to Ehrlich, Maryland can dramatically reduce crime by adopting Exile and ramping up federal prosecution of gun‐​law violations ordinarily handled in state courts. But Maryland would be ill‐​advised to take Ehrlich’s advice. Exile makes for an effective sound‐​bite, but it’s terrible public policy. The program is unconstitutional, dangerous to the rule of law, and does little to reduce violent crime.

Under Project Exile, crimes typically prosecuted at the state level — such as possession of a firearm by a former felon, drug user, or illegal alien — are handled in federal court, where mandatory minimum sentences and the possibility of serving time out of state are said to provide a stronger deterrent. Maryland’s new governor isn’t alone in his praise for Project Exile: President Bush has made an Exile‐​style effort to ramp up federal gun‐​law prosecutions the centerpiece of his crime control efforts.

It’s ironic that the effort to federalize the prosecution of gun crimes has come from the Republican Party, which likes to style itself as the party of federalism and the 10th Amendment. The statutes Exile is based on flagrantly violate the 10th Amendment, which states that powers not delegated to the federal government by the Constitution are reserved to the states or to the people. There is no constitutional authority for the federal government to prosecute garden‐​variety gun crimes that are already illegal in all 50 states.

And when the federal government takes on jobs it shouldn’t have, it often shirks the jobs it should: Judge Fred Motz, of the U.S. District Court for the District of Maryland in Baltimore, has warned that the frenzy to federalize gun crimes could have a “devastating” impact on the ability of the federal courts to do their job effectively.

Moreover, Exile‐​style programs lead to a mindless “zero tolerance” policy for technical infractions of gun laws. Federal prosecutors already operate under an incentive structure that George Washington University Law School Professor Jonathan Turley compares to “the body count approach in Vietnam… They feel a need to produce a body count to Congress to justify past appropriations and secure future increases.” This “body count” mentality may help explain the fact that recent federal firearms’ prosecutions have included a Colorado woman who was convicted under the felon‐​in‐​possession statutes for posing nude on the Internet with a gun, and an Iowa man who was sent to federal prison for 15 years for possession of a single .22‐​caliber bullet. Exile practically guarantees the proliferation of such cases by hiring full‐​time antigun prosecutors who only bring cases under one narrow slice of the criminal code.

Worse still, Exile opens the door to prosecutorial mischief affecting the racial composition of juries. There’s good reason to believe that Project Exile prosecutors have used the program to avoid black juries. In Richmond, where Project Exile was first implemented, the jury pool for the state‐​level Circuit Court where gun‐​law violations are usually prosecuted, is approximately 75 percent African‐​American. In contrast, the federal jury pool for Richmond defendants draws from a broader area and is only about 10 percent African‐​American. By diverting gun‐​possession cases from state to federal court, Richmond prosecutors were able to do indirectly what the Constitution does not allow them to do directly: manipulate the racial composition of the jury pool. Indeed, an assistant U.S. attorney frankly admitted that one of Exile’s goals was avoiding “Richmond juries.”

Those are some of the costs of Project Exile. How about the benefits? It turns out they’ve been dramatically oversold. Gov. Ehrlich’s claims about the efficacy of Project Exile are false; the most comprehensive study of Exile’s effects, just published by the Brookings Institution, says that the program did little, if anything, to reduce crime in Richmond. According to the study, conducted by Georgetown’s Jen Ludwig and Berkeley’s Steven Rafael: “[T]he decline in Richmond gun homicide rates surrounding the implementation of Project Exile was not unusual and… the observed decrease would have been likely to occur even in the absence of the program.” As Ludwig puts it, federalizing gun crimes was “no magic cure.”

Undermining federalism, damaging jury trial rights, and wasting resources on long jail sentences for marginal offenders — all in the name of a crime‐​control program that can’t deliver the goods. Gov. Ehrlich came to office promising “new ideas” — but Project Exile is one idea Maryland can do without.

About the Author