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.
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A large problem is logistics. Assuming they still have money leftover from trial, family duties while locked up, etc. the retained attorney has to figure what mechanism to free them. Do you file a 2254 that they’re being unlawfully held? If so, then you’re stuck with AEDPA admin deference which Scalia has held doesn’t even matter if you’re truly innocent. Could you appeal to the COA without preserving the objection from trial court (years ago) that the law is bad (even though it was good law at the time of sentencing)?
Or the government could say, without the need for anyone asking, “Oops, you’re right. You aren’t a criminal. Sorry. Have a nice day.” and let un-criminals go home.
Who’s the “government?” The trial judge? The original prosecutor? The new prosecutor in that same division? The prior defense attorney? Assume I’m an ADA in 10-20-Life/firearms, and I know the law has changed…logistically there’s no mechanism to get involved that I know of. Do you know how these “innocents” can get traction in the system to get their cases heard?
The government is the prosecution. And the prosecution isn’t an individual prosecutor, but the institution that prosecutes. Even if a particular AUSA (we’re talking federal here) leaves, an office remains to be responsible.
Jesus, even if I weren’t angry about the injustice of it all, it’d still piss me off as a taxpayer! What a waste — of lives, of money, and of liberty.
Not sure if this would make you feel better, but they would probably get charged for room and board on the way out.
I’m not sure that it’s accurate to say that these folks are innocent. Courts can, in some circumstances, interpret the law differently in different cases. It appears that they have done so here.
Not in the way you’re thinking. Once the Circuit interpreted the law to apply to actual potential sentences, rather than theoretical potential sentences, that became the law for all district judges within the circuit. And it will remain that way until the circuit reinterprets the law, or the Supreme Court decides otherwise.
Sure, that became the law prospectively, but whether or not the new interpration applies retroactively is a little more tricky. The fourth hasn’t decided that this ruling applies retroactively, have they?
No mention of retroactivity that I’m aware of, but that strikes at the heart of the problem. If it’s not a crime, then no one should be imprisoned for it.
For the under 40 set:
Post title is a 7Up advert reffie.
From back in the pre-corn syrup days when 7Up was still delicious and refreshing and had the best artwork.
Note that that is exactly what happened to the co-defendant in Judge Posner’s salad dressing case that you wrote about years ago, execpt that Posner found that no crime was committed under the specific facts at issue. I’m not sure how that shook out for him.
But here, when we say it’s not a crime, that’s not entirely accurate. Some judges have said it was a crime, others have said it isn’t. Unfortunately for the defendants here, the judges who decided the law applicable to their cases said that their conduct was criminal.
We’ve already covered this. It wasn’t that interesting the first time, and it’s not getting any more interesting this time.
BTW, notice the cute little “reply to this” button? It won’t make you look like such a n00b if you use it, and your comments will at least appear to follow a logical sequence.
SHG, I agree with you as far as outcomes go. But it’s not like the Savings Statute is an obscure thing. If Congress wanted to make a change retroactive, or applied to folks in the pipeline, all they’ve got to do is say so explicitly.
(This, of course, being the counter-argument they used on us in the Fair Sentencing Act. And, I guess, the same counter-counter-argument applies: the Savings Statute is very nice, but god damn, what’s the point of ruining peoples’ lives?)
(Except: I think the message of the Savings Statute is that it’s permissible to ruin people’s lives. The trick with the Fair Sentencing Act is that you’d be ruining lives because of what Congress now regards as racist bullshit. And apparently that’s worse than ruining lives Just Because.)
But thinking this through (dangerous on a Friday afternoon), it seems like the prohibition on ex post facto crimes comes into play here. If I wear Bermuda shorts and argyle socks intentionally today, I am protected forever even if the law changes tomorrow. But if someone did it the next day, they’re screwed. Why? It’s the same conduct with the same mens rea. The only explanation I can think of is that I wasn’t going against the will of the society, and the other guy was. But that would also mean that if you violated the social will at Time 1, it doesn’t matter that the will changes at Time 2 – the true crime is really defying the duly enacted social consensus.
I’m not sure that makes sense, and I don’t like that it means people have to spend time in jail. But I also like the prohibition on ex post facto crimes.
Sorry, will do. Though I will say I found the plight of Ross Marks, Farinella’s co-defendant in the salad dressing case, very interesting.
I got whiplash reading this.
I like how there’s zero discussion of Model Rule 3.8(h) in the DOJ’s response:
“When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”
Now obviously this provision doesn’t apply, on its face, to the present case, insofar as it arose from a new(?) rule of law rather than the discovery of new evidence. But you’d think that the “penumbras and emanations” of 3.8(f) and (g) suggest an ethical duty for federal prosecutors to inform defendants when they have good cause to believe those defendants are eligible for post-conviction relief based on the government’s own mistake of law.
Oh well. Everybody knows that a prosecutor can’t admit to being on the wrong side of the law. Then they would really be “outcome driven.”
This situation allows them to circumvent technical ethical rules altogether. The technical response is that they government is not required to advise every prisoner of the change in law that would make their conduct not criminal, and that is technically true. Then again, it doesn’t forbid the government from being honest, ethical (in the higher order sense) and doing the right thing by citizens.
After all, would it really be such a bad thing for the government to do something right by its citizens?
Of course, raising Wild Bill’s “emanations and penumbras” has its own issues.