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November 14, 2011

Big (ugly?) NY Times report on felons getting back gun rights

This morning's New York Times has this huge front-page story headlined "Felons Finding It Easy to Get Gun Rights Reinstated." Disappointingly (but not surprisingly), the theme of the article is decidedly not praise for efforts by some states to make it easier for former felons to regain a fundamental constitutional right.  Here are some excerpts from an article that should (and likely will) be the subject of lots of discussion and commentary:

Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review. In several states, they include people convicted of violent crimes, including first-degree murder and manslaughter, an examination by The New York Times has found.

While previously a small number of felons were able to reclaim their gun rights, the process became commonplace in many states in the late 1980s, after Congress started allowing state laws to dictate these reinstatements — part of an overhaul of federal gun laws orchestrated by the National Rifle Association. The restoration movement has gathered force in recent years, as gun rights advocates have sought to capitalize on the 2008 Supreme Court ruling that the Second Amendment protects an individual’s right to bear arms.

This gradual pulling back of what many Americans have unquestioningly assumed was a blanket prohibition has drawn relatively little public notice. Indeed, state law enforcement agencies have scant information, if any, on which felons are getting their gun rights back, let alone how many have gone on to commit new crimes.

While many states continue to make it very difficult for felons to get their gun rights back — and federal felons are out of luck without a presidential pardon — many other jurisdictions are far more lenient, The Times found. In some, restoration is automatic for nonviolent felons as soon as they complete their sentences. In others, the decision is left up to judges, but the standards are generally vague, the process often perfunctory. In some states, even violent felons face a relatively low bar, with no waiting period before they can apply....

Margaret C. Love, a pardon lawyer based in Washington, D.C., who has researched gun rights restoration laws, estimated that, depending on the type of crime, in more than half the states felons have a reasonable chance of getting back their gun rights.

That universe could well expand, as pro-gun groups shed a historical reluctance to advocate publicly for gun rights for felons. Lawyers litigating Second Amendment issues are also starting to challenge the more restrictive restoration laws. Pro-gun groups have pressed the issue in the last few years in states as diverse as Alaska, Ohio, Oregon and Tennessee.

Ohio’s Legislature confronted the matter when it passed a law this year fixing a technicality that threatened to invalidate the state’s restorations. Ken Hanson, legislative chairman of the Buckeye Firearms Coalition, argued that felons should be able to reclaim their gun rights just as they can other civil rights. “If it’s a constitutional right, you treat it with equal dignity with other rights,” he said.

But Toby Hoover, executive director of the Ohio Coalition Against Gun Violence, contended that the public was safer without guns in the hands of people who have committed serious crimes. “It seems that Ohio legislators have plenty of problems to solve that should be a much higher priority than making sure criminals have guns,” Ms. Hoover said in written testimony.

That question — whether the restorations pose a risk to public safety — has received little study, in part because data can be hard to come by.

The Times analyzed data from Washington State.... Since 1995, more than 3,300 felons and people convicted of domestic violence misdemeanors have regained their gun rights in the state — 430 in 2010 alone — according to the analysis of data provided by the state police and the court system. Of that number, more than 400 — about 13 percent — have subsequently committed new crimes, the analysis found. More than 200 committed felonies, including murder, assault in the first and second degree, child rape and drive-by shooting....

[T]he restoration of civil rights, which is now central to regaining gun rights, is relatively routine, automatic in many states upon completion of a sentence. In some states, felons must also petition for a judicial order specifically restoring firearms rights. Other potential paths include a pardon from the governor or state clemency board or a “set aside”— essentially, an annulment — of the conviction.

Today, in at least 11 states, including Kansas, Ohio, Minnesota and Rhode Island, restoration of firearms rights is automatic, without any review at all, for many nonviolent felons, usually once they finish their sentences, or after a certain amount of time crime-free. Even violent felons may petition to have their firearms rights restored in states like Ohio, Minnesota and Virginia. Some states, including Georgia and Nebraska, award scores of pardons every year that specifically confer gun privileges.

Felons face steep odds, though, in states like California, where the governor’s office gives out only a handful of pardons every year, if that. “It’s a long, drawn-out process,” said Steve Lindley, chief of the State Department of Justice’s firearms bureau. “They were convicted of a felony crime. There are penalties for that.”

Studies on the impact of gun restrictions largely support barring felons from possessing firearms. One study, published in the American Journal of Public Health in 1999, found that denying handgun purchases to felons cut their risk of committing new gun or violent crimes by 20 to 30 percent. A year earlier, a study in the Journal of the American Medical Association found that handgun purchasers with at least one prior misdemeanor — not even a felony — were more than seven times as likely as those with no criminal history to be charged with new offenses over a 15-year period.

Criminologists studying recidivism have found that felons usually have to stay out of trouble for about a decade before their risk of committing a crime equals that of people with no records. According to Alfred Blumstein, a professor at Carnegie Mellon University, for violent offenders, that period is 11 to 15 years; for drug offenders, 10 to 14 years; and for those who have committed property crimes, 8 to 11 years. An important caveat: Professor Blumstein did not look at what happens when felons are given guns....

Washington’s gun rights restoration statute dates to a 1995 statewide initiative, the Hard Times for Armed Crimes Act, that toughened penalties for crimes involving firearms. The initiative was spearheaded, in part, by pro-gun activists, including leaders of the Second Amendment Foundation, an advocacy group, and the N.R.A.

Although it drew little notice at the time, the legislation also included an expansion of what had been very limited eligibility for restoration of firearms rights. “There were a lot of people who we felt should be able to get their gun rights restored who could not,” said Alan M. Gottlieb, founder of the Second Amendment Foundation, who was active in the effort.

Under the legislation, “Class A” felons — who have committed the most serious crimes, like murder and manslaughter — are ineligible, as are sex offenders. Otherwise, judges are required to grant the petitions as long as, essentially, felons have not been convicted of any new crimes in the five years after completing their sentences. Judges have no discretion to deny the requests based upon character, mental health or any other factors. Mr. Gottlieb said they explicitly wrote the statute this way. “We were having problems with judges that weren’t going to restore rights no matter what,” he said.

The statute’s mix of strictness and leniency makes Washington a useful testing ground. The Times’s analysis found that among the more than 400 people who committed crimes after winning back their gun rights under the new law, more than 70 committed Class A or B felonies. Over all, more than 80 were convicted of some sort of assault and more than 100 of drug offenses.

 

November 14, 2011 at 10:03 AM | Permalink

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Comments

I don't see a lot in there about voting rights. Getting voting rights back can be pretty hard. Harder, in my opinion, than it should be once you have done your time. If you have finished your sentence, I have no problem with gun-rights restoration. It might be prudent to put a waiting period after release from prison (which would be imposed at the time of sentence, as part of the sentence, like supervised release), but at some point most folks should rejoin the fold of society, absent some special justification for indefinite supervision/limitation of rights. (There is an analogy here to sex offender treatment, where non-expiring, lifetime limitations are probably being applied with way too broad a brush right now...)

I would have a problem, though, if it were easier to get your gun rights back than your right to vote. The latter should be at least as straightforward as the former, but I'm not sure that is the case in every state. Maybe we need an NBA (National Ballot Association) with the funding and savvy of the NRA!

I'm also curious about the federal vs. state rights restoration question. My understanding from looking at the law a year or two ago was that it would be easy for a person to receive a state gun-rights restoration that would *not* apply federally. It really looked like a trap for the unwary, where the local sheriff might tell you you could have a hunting rifle, but if you were later arrested for some reason, you might find yourself looking at federal felon-in-possession charges. I also remember having the impression that handguns were treating differently than rifles/shotguns.

I'd be interested to know if anyone has a more concrete sense of the state/federal interaction, and if the federal law is really as consistently deferential to state practices as portrayed in the article.

Posted by: Anon | Nov 14, 2011 10:54:55 AM

anon: "I don't see a lot in there about voting rights."

me: at least where I'm from, people are way more interested in guns than voting. given the lack of competitive elections there, it may actually make sense to have guns as the priority. at least with a gun you might be able to shoot a deer and be able to eat which is much more useful than the "right" to choose between an unopposed right wing Republican and writing in the protest candidate of your choice. Maybe if we had more competitive elections people would care more about the right to vote.

Posted by: virginia | Nov 14, 2011 12:05:01 PM

Anon: I'd be interested to know if anyone has a more concrete sense of the state/federal interaction, and if the federal law is really as consistently deferential to state practices as portrayed in the article.

The feds are not deferential. Of the cases I have reviewed, the Court of Appeals that have addressed this issue, for example 8th Circuit and MO's restoration of rights, have determined that all of the federally recognized civil rights must be restored and if they are not, even if possession of firearm is one of the restored rights, the individual will be prosecuted federally for being a felon in possession of a firearm. There is also an interesting 2d Circuit case in which the defendant did not get a prison sentence, so, in Vt, he did not lose his rights so he could possess firearm. He was federally prosecuted for being a felon in possession of a firearm and Second Circuit affirmed the conviction because all of his civil rights were not "restored". . ..

Posted by: angela | Nov 14, 2011 1:01:39 PM

It is my vague recollection that there is a separate federal procedure for reinstatement once your state rights are reinstated...but it is unfunded. Also, one never regains their 2d A rights after a DV conviction of any sort, under federal law.

Posted by: Ala JD | Nov 14, 2011 1:18:13 PM

Since the NYT likes to focus on racial-disparity angles when complaining about states that do not restore voting rights to persons with felony convictions, is it suprising that this article doesn't get into any statistics about the racial-disparity impact of felon-in-possession prosecutions? I guess that may depend on your level of pre-existing cynicism about the NYT.

Posted by: JWB | Nov 14, 2011 1:34:44 PM

Angela,

That definitely sounds like my experience. I looked into it a bit for a client (Ginny -- you are right on the mark, I thought the client might be interested in voting rights, but he was only interested in getting a gun!), and it seemed to me that although the *State* was happy to let you have a gun after serving your time, that did not necessarily include full restoration of rights (that required a pardon, about which they are much more parsimonious). Accordingly, most State "restorations" were non-starters for federal purposes. And no one on the State side seemed to have any idea about the parallel federal requirements.

I have no doubt there are hundreds if not thousands of gun-toting hunters and home-defenders in my State who are possessing in reliance on assurances from State law enforcement that it is legal. Probably 99% of them will not fall under the feds radar. But they are all at risk... if the feds decide you are a bad actor, they will be more than happy to hold you to the letter of the law. (Whether or not they can prove the other, more salient criminal activity they suspect you of.)

PS- Ala JD, I had also heard that the federal restoration program was specifically unfunded (like, as in, Congress forbid the FBI/ATF/whoever to spend any money on it)...

I am not a big gun person, but I don't think it's fair that regular folk who like to hunt are tossed around like a political football like this, and put in jeopardy of serious criminal consequences.

Posted by: Anon | Nov 14, 2011 5:10:48 PM

It's insanity like this that keeps me from joining the NRA. No felon should ever have the right to buy a gun, let alone carry a concealed weapon.

Posted by: MikeinCT | Nov 15, 2011 12:38:17 AM

MikeinCT,

Really, categorically *no* felon? Including, for example, someone who has a record for possession of cocaine or marijuana or LSD at age 18, served probation (although the offense was technically *punishable* by up to, say 5 years), and has had a clean record and upstanding life for the last 20 years?

I get that folks we have a good reason to view as potentially dangerous should probably be restricted from buying guns. But our system of felony laws is so broad, that it seems that a lifetime felony gun ban has to be wildly overinclusive.

Posted by: Anon | Nov 15, 2011 10:58:40 AM

well mikeinCT no offence but i think you need to buy a ticket to ANYWHERE you live in the wrong country. might i recommend russia, or just about anywhere in communist asia! you'd fit right in!

Posted by: rodsmith | Nov 15, 2011 12:59:20 PM

Under the legislation, “Class A” felons — who have committed the most serious crimes, like murder and manslaughter — are ineligible, as are sex offenders.

So you put sex offenders personal information on a web page for everyone to see; home address, work address, car make, model and license plate. Then deny them the right to own a gun EVER.
Can anybody in the house defend themself from vigelantes? No?

Posted by: JS | Nov 15, 2011 5:40:10 PM

@rodsmith
Live next door to a convicted murderer, armed robber or drug dealer who just got his gun rights back and tell me you support the law. If wanting to keep guns out of the hands of people who can't follow basic laws makes me a communist, then I'll change my screen name to Comrade Commissar MikeinCT.

Posted by: MikeinCT | Nov 16, 2011 10:06:46 PM

@JS
Curtis Hairston had his gun rights restored and has the right to carry a concealed weapon despite convictions for murder and sex crimes.

Posted by: MikeinCT | Nov 16, 2011 10:09:27 PM

@Anon
If this law was limited to people who had a conviction for possessing a gram of pot 20 years ago. The NRA knowingly pushed for a law that would put guns in the hands of violent criminals, that is unforgivable.

As for the felons, why should they be trusted to safely possess a gun when they can't be trusted to follow the law? Law abiding citizens are barely reliable in that regard.

Posted by: MikeinCT | Nov 16, 2011 10:14:45 PM

hmm last time i looked Under OUR constution once you have paid your court ordered punishment you are now LEGALLY just as much an CITIZEN as anyone else here LEGALLY! HELL according to the idiots on the bench now those who are here ILEGALLY have more rights than an AMERICAN CITIZEN who has a felony conviction....SORRY that's CRIMINAL! and more than likely TREASON! against that document!

as for living next door to a criminal is a problem. YOUR IN TROUBLE last time i looked the number was now up to like 1 out of every 36 individuals in this county has been convicted of SOMETHING! wanna take any bets some don't live near you?

Posted by: rodsmith | Nov 17, 2011 1:29:29 PM

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