Jonathan Abel
Volume 77, Issue 3, 613-658
This Article answers a crucial empirical question at the heart of the scholarly and judicial debates about the laws governing felon-in-possession of a firearm: How often do defendants charged with this offense have violent felony convictions? Using a comprehensive dataset of over 27,000 defendants charged in California from 2021 through 2024, the study provides a novel, large-scale analysis of how prosecutors deploy this most-common gun charge. The findings substantiate longstanding concerns that felon-in-possession is overbroad in its application to nonviolent felons—only 8.5% of defendants had a “violent felony” conviction as defined by California law, rising to just 28.8% under a broader definition of violent felony. The data also confirm critics’ fears about racial disparities in prosecutions, showing that Black and Latino defendants are overrepresented not only compared to population demographics but also compared to their proportion among all felony defendants. At the same time, however, the findings challenge the traditional critiques of felon-in-possession, primarily by shifting the focus away from drug felons and white-collar felons. Instead, the data show that a plurality of defendants has neither a violent felony conviction nor a drug-related felony conviction, but instead has convictions for crimes on the border of violence—“violent-adjacent” offenses like burglary or fleeing from the police. The study also reveals that prosecutors file the enhanced violent-felon-in-possession charge in only 27.3% of eligible cases, suggesting an unexpected underuse of penalties for defendants with violent histories. These empirical insights arrive at a critical moment as courts evaluate Second Amendment challenges to felon-in-possession laws, particularly regarding their application to nonviolent felons, and as policymakers consider reforms to this controversial gun crime.