A fascinating investigation in USA Today reveals that a slew of people in federal prison in North Carolina, some serving lengthy sentences, have one thing in common. They're not criminals. Well, not now, though they were when they were sentenced.
A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.
Many of them don't even know they're innocent.
And the feds have no plans to tell them.
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."
Perhaps the government is only allowed a limited amount of "outcome driven," and they've squandered it on putting these people into prison. Now that they're legally innocent, there's no "outcome driven" left to get them out.
The nature of the problem arose from one of the happiest/saddest aspects of the law, the appellate reversal.
Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.
To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
The rule of thumb was always that courts would interpret a statute in such a way as to criminal the fiction over the reality, under the theory that no one should avoid imprisonment because they didn't actually do the wrong alleged. It was enough that they could have done it. That, the courts would smugly announce, will teach others to keep their noses clean. Deterrence is also, frequently, a fiction.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.
The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.
Hooray for defendants going forward. Bummer for defendants already imprisoned. This doesn't alter their factual conduct, that they had a prior conviction and possessed a weapon. Rather, it just says that the crime for which they were convicted is now an un-crime. But as long as it was a crime at the time, even if only because the courts screwed up by misinterpreting the law, "justice" allows you to rot.
While the USA Today investigation focuses on one somewhat parochial offense, what we delightfully call "felon in possession," this is hardly a unique situation. The same happened with "use and carry" in connection with drugs, and of course there's the glorious crack cocaine sentencing disparity that took Congress a few decades to straighten out. And a biggie, the Supreme Court's Booker decision, holding the Federal Sentencing Guidelines "advisory" rather than mandatory, rendering all those sentences rammed down judge's throats an unfortunate exercise of misinterpreted obligation.
Sorry, defendants. I would have given you 24 months, but the guidelines made me give you 121. But not to worry, you 'll be out soon enough. Maybe. If you live that long.
Expectations that the courts, as the majestic arbiter of justice, will not only clean up its own mess, but make it right, rarely turn out as well as one might hope. It's not that judges don't eventually get it right, sometimes, but that it can take years, decades, before they finally say, "oops, we're sorry, but we got it all wrong." And the fact that it cost a human being his life, it cost children and spouses a substantial part of their lives, and fundamentally changed the future for thousands of human beings who suffer the consequences for these interpretive errors, can't be helped. It takes time, you know, to get it right. A whole lot of time.
When you talk to a fellow through a plexiglass partition about why his frustration, his bewilderment, at how wrong all of this is and how the interpretation by a bunch of robed people is so utterly detached from reality, there's really no good explanation. At least nothing that will soothe their anger. It understandable that they hate us, their lawyers, for participating in a system that can perpetrate such outrages in the name of a silly mistake. That we didn't do this to them is of little comfort. We didn't stop it either.
But when we disconnect fundamental concepts like mens rea from crimes, or when Congress enacts vague, facile laws to fix the evil du jour that the public is told will give us a perfect world, you end up with a bunch of people prosecuted, convicted and sentenced who, when the heat of the moment passes and calmer minds consider, committed no crime. At least, committed no crime in retrospect, as if it makes them feel better to find out after it's too late that they're now an un-criminal.