December 21, 2020
Discretion is built into the criminal justice system, with branching decision points throughout for police officers, prosecutors, judges, probation officers, and other actors. There is also a growing recognition among municipal officials, police leaders, and district attorneys that local agencies can take actions to reduce unnecessary arrest and confinement. "[C]riminal law does not function as law," wrote criminologist William J. Stuntz. "Rather, the law defines a menu of options for police officers and prosecutors to use as they see fit."This wide variety of options has recently been getting increased attention, with many cities experimenting with the implementation of formal measures that reduce enforcement and sanction. For example, the elected district attorneys in four New York City boroughs recently agreed to clear outstanding arrest warrants for old, low-level charges, like selling loose cigarettes and drinking in public. The New York City Police Department (NYPD) and other major metropolitan departments have made a shift away from arrests for low-level marijuana possession and misdemeanor offenses. Many cities have also taken a cue from Seattle, Washington, whose Law Enforcement Assisted Diversion (LEAD) program diverts low-level drug addicts and sex workers directly into treatment programs. In Baton Rouge, Louisiana, the police department has supported "warrant amnesty days" to clear large volumes of outstanding fines and warrants. These are just a few examples of wide-sweeping, formal uses of less enforcement-focused ideas in general policing. In response to the COVID-19 pandemic, many jurisdictions released individuals from prisons and jails and reduced new admissions to those facilities to help prevent the spread of the virus.The National Network for Safe Communities (NNSC) explores whether and how new techniques such as these could be expanded and applied specifically to guns and gun violence. In particular, this report emphasizes that the encounters between police and firearms do not occur in a vacuum, but are the product of a long chain of decisions. This report seeks to explore that chain of decision-making and how departments can directly apply more innovative decision-making to address the extraordinarily important issue of gun violence. Police engagement with guns and gun violence encompasses more than the singular encounter with a gun, and there are in fact ways that police and police departments think and can think about gun violence that are broader than that encounter. Even more importantly, these innovative practices can reduce violence in communities with a high incidence of gun violence. This review begins with an examination of current discretionary practices in law enforcement at large—including programs and decisions not traditionally thought of as such—and then returns to address new police thinking and practice around police encounters with illegal firearms.