Justice for Victims of School Shootings Act Could Have Unintended Consequences

COMMENTARY Crime and Justice

Justice for Victims of School Shootings Act Could Have Unintended Consequences

Sep 4th, 2019 3 min read

Commentary By

GianCarlo Canaparo

Legal Fellow

Lucas Drill

Summer 2019 member of the Young Leaders Program at The Heritage Foundation

There is no shortage of criminal charges for school shooters—or even would-be school shooters who are apprehended while still in the planning stages. RoschetzkyIstockPhoto/Getty Images

Key Takeaways

Rep. Randy Weber, R-Texas, on Aug. 23 introduced the Justice for Victims of School Shootings Act.

Every state already has a bevy of criminal statutes that they can use to put shooters behind bars for life. Or worse.

The overfederalization of crime—and the broader phenomenon of overcriminalization of which it is a part—is problematic by itself. 

Another member of Congress, this time a Republican, has succumbed to the temptation of creating a federal crime where one isn’t needed.

Rep. Randy Weber, R-Texas, on Aug. 23 introduced the Justice for Victims of School Shootings Act, which would make carrying out, or conspiring to carry out, a school shooting a federal crime. 

At first blush, it sounds like a good idea. After all, Weber is right that currently there’s no federal law that clearly applies to school shootings.

But he’s wrong to assume that there needs to be one. 

As the Supreme Court put it more than 40 years ago, “It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government.”

It should still go without saying, but since the Supreme Court delivered that admonition in 1977, the federal government has become addicted to creating crimes. 

Experts estimate that there are now nearly 5,000 federal statutes and more than 300,000 federal regulations that carry potential criminal penalties. There are, in fact, so many federal criminal statutes and regulations that nobody—not even the Justice Department—knows for sure. 

How does this happen? As Heritage Foundation scholars have said on many occasions (see, for example, here and here), legislators are often the problem. 

After a crisis, lawmakers’ first impulse is often to criminalize the perpetrator’s conduct to show their constituents that they’re doing something. The result, however, is usually a series of vague or redundant laws, which can create their own series of problems.

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To be sure, school shootings are a serious problem, and school shooters should be severely punished.

But every state already has a bevy of criminal statutes that they can use to put shooters behind bars for life. Or worse.

Premeditated murder (often called “first-degree murder”) is a state-law crime. While each state has its own laws and sentencing guidelines for premeditated murder, in almost every state the maximum penalty is life imprisonment (often without parole) or death (in states with capital punishment).

States can, and often do, charge shooters with every criminal statute they have available. Every state will vigorously prosecute any school shooter. Nobody wants to see a school shooter go unpunished.

States have myriad laws to punish school shooters even if their victims don’t die. A shooter can be charged with assault, assault with a deadly weapon, battery, attempted murder, and various gun-related crimes, among others.  Each specific offending action is a separate crime that carries a separate punishment.    

The point is, there is no shortage of criminal charges for school shooters—or even would-be school shooters who are apprehended while still in the planning stages. Making it a federal crime serves no additional purpose.  

In fact, if enacted, the Justice for Victims of School Shootings Act could have some deleterious consequences.

By creating a new federal crime for school shooters, it creates the possibility that a school shooter will go through two separate trials—one in state court and one in federal court.

That means more media coverage; i.e., more national attention on the shooter’s life, family, and social media posts. More attention could mean more copycats.

Extending a school shooter’s 15 minutes of infamy not only takes attention away from victims and first responders, but increases the “reward” for other would-be shooters who crave the spotlight. We should not give them that attention.

The overfederalization of crime—and the broader phenomenon of overcriminalization of which it is a part—is problematic by itself. 

If the law, despite its good intentions, actually increases the likelihood, however slight, that someone else will commit the crime that the law is designed to prevent, then it’s not just problematic, it’s perverse.  

Rather than create a new federal crime with which to charge school shooters, federal legislators should instead step back, allow states to pursue justice when one of these horrendous incidents occur, and let the names and faces of those who commit school shootings fade quickly from memory.

This piece originally appeared in the Daily Signal