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June 14, 2012

"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws

Med-topperThe folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:

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.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun.  The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

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."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.   "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual.  Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent.  Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime.  Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation.  The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...

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.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

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.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.  "We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.

Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law.  But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.

Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue.  Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."

Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.

"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh.  That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled.  But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.

But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.

"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro.  "I appreciate the compelling considerations they have to deal with.  But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."  Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.

This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment. 

As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime.  Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy.  Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.

June 14, 2012 at 10:48 AM | Permalink

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Comments

What strikes me most about this is the DOJ's position that they have no obligation to do justice, and let wrongly convicted persons know that the USA has confessed error in the conviction that destroyed their lives. How in the hell does can DOJ say with a straight face that they have no obligation here?

My only guess is sociopathy, because the position is refuted by lawyers' Rules of Professional Conduct.

Posted by: Jay Hurst | Jun 14, 2012 11:17:46 AM

re: : "Wrongful conviction cases"
Jay Hust: || "error in the conviction that destroyed their lives" ||

If it's wrong, it's wrong.
Nevertheless, how about a little perspective.

For these who had "a long record"
and who "could have gone to prison for more than a year for the crime",
such convictions of the "innocent" may or may not have destroyed any lives.

Posted by: Adamakis | Jun 14, 2012 12:02:45 PM

I'm interested to know Bill Otis's thoughts on this. Bill?

Posted by: defendergirl | Jun 14, 2012 12:10:49 PM

The U.S. Attorneys' attitudes that they have no duty to notify people of their actual, legal innocence and help get them out of prison in these gun cases is profoundly and morally troubling, particularly in light of what the U.S. Supreme Court has long had to say about prosecutors' Constitutional and ethical obligations to seek justice, not just obtain convictions. See, Berger v. United States, 295 U.S. 78, 88 (1935). There are some existing ways to help these actually innocent people pretty easily, even if they cannot file 2255 Habeas Corpus Motions because they are time-barred or have already filed and lost their single 2255 Motion. For those who have already fully served their sentences (including supervised release), the appropriate remedy may be filing a Petition for a Writ of Error Coram Nobis. See, for example, United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002). While Peter presents a case where the U.S. Supreme Court (not a Circuit Court, as here) had rendered an opinion that meant the crime the defendant had been convicted of (based on certain facts)is not a crime at all, the Writ should also be available where the opinion that changes our factual understanding of the law comes from a Circuit Court, as here. Those still incarcerated (or serving Supervised Release) who cannot use section 2255 may proceed by filing a 2241 Habeas Corpus Petition alleging "actual innocence", pursuant to the gateway outlined by the U.S. Supreme Court in Herrera v. Collins, 506 U.S. 390, 417 (1993)[which the court has only ever found to have been (partially) satisfied in the Troy Davis death penalty case]. Although many are not aware of it, 2241 Petitions can be filed directly in the U.S. Supreme Court or in a Federal Circuit Court, not just in a U.S. District Court. Given the unique circumstances of this situation, the 2241 Habeas Corpus Petitions should be filed directly to the Circuit Court or to the Supreme Court. Other options may be found under the "All Writs Act", 28 U.S. Code section 1651. See also the Cornell Journal of Law and Public Policy article that can be found at www.jlpp.org/2010/11/19/innocent-after-proven-guilty.

Posted by: Jim Gormley | Jun 14, 2012 12:18:10 PM

In addition to executive clemency (which ought to be but rarely is considered by DOJ in a situation like this), there is the sentence reduction authority in 18 USC 3582(c)(1)(A)(i), which authorizes a court "at any time" to reduce a sentence for “extraordinary and compelling reasons.” While the court’s jurisdiction under this statute appears to depend upon BOP filing a motion, recently a number of courts have acted to release a prisoner without waiting for BOP, apparently out of frustration with BOP’s "death rattle rule" and how it is administered.

Posted by: Margy | Jun 14, 2012 12:44:12 PM

Why shouldn't those who are participating in keeping these legally innocent people in prison be prosecuted and sued themselves?

Posted by: Calif. Capital Defense Counsel | Jun 14, 2012 1:02:42 PM

I tend to believe "actual innocence" would overcome many issues that might otherwise preclude relief. It might depend on the circuit's position on "actual innocence" and procedural issues.

Posted by: Tim Holloway | Jun 14, 2012 3:09:40 PM

Individuals who comment frequently on this blog would have AEDPA interpreted and applied in a manner to keep these innocents in prison.

Posted by: Calif. Capital Defense Counsel | Jun 14, 2012 3:54:49 PM

Innocence is different. If a person is demonstrably innocent, then he should be released.

Posted by: federalist | Jun 14, 2012 8:50:05 PM

defendergirl --

"I'm interested to know Bill Otis's thoughts on this. Bill?"

I generally avoid responding on demand, particularly to people who seldom show up, won't give their true name, and have never responded to me.

But I'll make the rare exception for defendergirl.

My thoughts are that the lassitude/indifference of the United States Attorneys involved might be taken up with the fellow who appointed them, or the one who supervises them. Barack? Eric?

Posted by: Bill Otis | Jun 14, 2012 10:05:39 PM

Because the damage of being falsely imprisoned has the certainty of planetary orbits (as the sun rises in the East, and sets in the West), a duty surely exists. This outrage is another anecdotal but powerful argument to end all judge, prosecutor, and lawyer self-dealt tort immunities. All damages should come from the assets of the lawyer.

If it is true that torts is a substitute for violence (If A then B, is true.), the contra-positive is 100% true (if not B, then not A is true.), meaning immunity fully justifies violence in formal logic, in ethics, and itself becomes a duty, given the certainty of the damage of being in prison falsely. The judges and prosecutors responsible, until they are conferred tort liability, should be hunted down by night riders in low riders, tied to a tree, and given 50 lashes. The tree should preferably be in front of the court house so people coming to work in the morning, can learn from the pain of their fellow cult criminals. If a lawyer, judge or prosecutor does it again, they should be killed, to end their criminality by incapacitation.

Posted by: Supremacy Claus | Jun 14, 2012 10:06:48 PM

Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief,"
It ain't that hard Rand. Why don't you file a motion to vacate the defendants' convictions? If no one appeals how is it a problem?
Rand, why don't you go along with a motion for new trial for those who went to trial and lost? If no one appeals how is it a problem?
Rand, why doesn't your office just lay down when confronted with a 2255 from one of the affected defendants? If no one appeals how it is a problem?
Sounds like Rand likes skins on the wall as opposed to justice.
Bill's idea to ameiorate the problem is to go to Holder or Obama. What a waste of time. Holder can't vacate convictions--he needs the judiciary to go along. Obama, as readers of this blog know, doesn't use his power to pardon even in cases that are worse than this North Carolina debacle. Thanks Bill for suggesting wheel spinning-that really improves the public's perception of the legitimacy of the legal system.

Posted by: ? | Jun 15, 2012 12:04:04 AM

this one is very tought. WE know as FACT that the fucktards now running the DOJ have beancurd for brains. They have FACTUALLY ADMITED the LAW WAS ILLEGAL....based on the 20-40 cases they have canned. But now they refuse to release those ALREADY CONVICTD UNDER AN ILLEGAL LAW!

So it's a tough call.

Do i push for given each and every fucktard involved 60 days in prison for EACH and every individual's day spent in prison PAST the date of the annoucment....that could kock that 800+ year sentence on its head as the longest!

or just push to consider them FACTUALY GUILTIY of CAPITAL STUPDITY and TREASON and just SHOOT THE FUCKTARDS!

Posted by: rodsmith | Jun 15, 2012 1:13:44 AM

this latest mess reinforces the notion that in North Carolina, and I'm sure other states, criminal sentencing practices have become an irrational house of cards. The feds define a felony as a crime for which a def can spend more than a year in prison. Which of course ignores the fact that in NC a person can possess a small amount of cocaine, which is defined as a felony, and not be eligible to receive a single day in jail. Or can commit a misdemeanor, like driving while impaired, and go to prison for two years.

As I've said numerous times, the archaic felony/misdemeanor dichotomy should be abolished once a state goes to a grid sentencing system. But that would involve a politician voting to take something off the table when something else is added, which for political reasons our legislators are unwilling to do.

this is disgraceful.

bruce

Posted by: bruce cunningham | Jun 15, 2012 7:15:05 AM

I thought I posted this yesterday, but I am not seeing it and will try again. As defendergirl notes, the writ of coram nobis may be the appropriate venue for post-conviction collateral relief in these instances. While procedural default may still be an issue, unlike other circuits (as illustrated by the recent 1st Circuit decision that you linked to), the criteria for coram nobis relief in the 4th Circuit are comparatively lenient. See United States v. Mandel, 862 F.2d 1067, 1077 (4th Cir 1988) (Hall, J., dissenting) (citing Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987)).

Posted by: Chris | Jun 15, 2012 1:32:45 PM

Chris, the Coram Nobis post was mine, not defender girl's. Her name is at the top of the post, and mine is at the bottom, so it's easy to get confused. Somebody needs to get to work getting these people out of prison. It's just scandalous the way they are being treated and still held there.

Posted by: Jim Gormley | Jun 15, 2012 2:05:41 PM

I was under the impression that at least in some circuits, a 2241 petition would lie where relief under 2255 was unavailable. The example I remember is a new decision of the USSC that interprets a federal statute substantively so as to exclude certain types of (prior) violations as to not be a crime. (For example, interpreting the statute to require a certain mens rea, where previous defendants were convicted despite the lack of that level of mens rea.) Because this is not a "constitutional" ruling, it would not fit under the exception to time bars or the exception to the successive bar under 2255.

The statute seems to support this. 2241 authorizes granting the writ if a prisoner is in custody in violation of the constitution or the laws of the United States. I would say the defendants at issue here are probably both. What stands in the way of simply granting the writ is 2255(e), which states "An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." But it seems clear here that a motion under 2255 is "inadequate or ineffective to test the legality of [the] detention." Thus, the 2255(e) gateway is met, and 2241 relief can be granted.

At the very least, this is a eminently colorable legal/statutory analysis that the USA could acquiesce to in district courts without making any adverse precedent. Their hands are only tied to the extent that they insist at all times on taking the most extreme, maximalist possible position in favor of any conceivable procedural bar they perceive in a case. I guess if that is your baseline assumption, yes this is a hard call for them. In a sane world, no.

Posted by: Anon | Jun 15, 2012 3:06:21 PM

Otis proves himself one again to be a retired but committed political hack.

Posted by: Steve Prof | Jun 15, 2012 6:00:03 PM

Steve Prof --

Do you disagree with anything in my comment? What would that be?

Posted by: Bill Otis | Jun 15, 2012 6:07:44 PM

Steve Prof --

Hear, hear!

Posted by: Calif. Capital Defense Counsel | Jun 15, 2012 10:11:06 PM

Bill Otis,

I do disagree with your post insofar as it evinces an attitude that Assistant United States Attorneys do not have an individual and independent duty to seek justice rather than maintain convictions.

I also don't see that it matters very much who occupies the political offices, the attitude would be the same and the same excoriation for that attitude would be just as deserved. If they are being told to do this by the politcal masters tthen I would say that any prosecutor who honors their ethics would resign in protest before continuing the charade. If instead it is simply being allowed by the political masters (a proposition I admit to finding somewhat dubious) then the AUSAs still deserve the personal criticism for how they handle such cases, though the nature of that criticism would change somewhat.

Posted by: Soronel Haetir | Jun 15, 2012 11:50:25 PM

To continue imprisoning those who are factually innocent is indeed an injustice, and the USAOs in NC should assign a task-force to find still-imprisoned convicts and right the wrong.

At the same time, I can't help noticing that the poster boy for this article, McCullum, served a year in prison on the federal crime and was quickly released. The only reason he's back now is because he reacted to his release by going out and robbing someone -- a new crime that you can hardly blame the feddies for...

Posted by: Injustice | Jun 16, 2012 1:20:00 AM

Soronel --

For what it's worth, my views largely parallel those of "injustice," who wrote the comment immediately after yours.

My outlook hasn't changed on this. I take full responsibility for what I do and the cases I handled, which is one important reason I (like you) use my real name. It makes it easy for anyone who cares to to look up my litigation record and fire away if they want to.

I take no responsibility for what others do, most especially when they entered their office long after I left and when I opposed there ascension to power precisely because I don't trust their judgment or instincts.

Posted by: Bill Otis | Jun 16, 2012 8:31:53 AM

Soronel --

Make that "...opposed THEIR ascension to power..."

Posted by: Bill Otis | Jun 16, 2012 9:25:39 AM

Otis, I disagree with you implication that you are on a first name basis with either our President or Attorney General. I wonder if you think the response would have been different under Republican Presidents, including any u claim u worked under?

Posted by: Steve Prof | Jun 16, 2012 3:48:04 PM

Steve Prof --

"Otis, I disagree with you implication that you are on a first name basis with either our President or Attorney General."

Get a life.

"I wonder if you think the response would have been different under Republican Presidents, including any u claim u worked under?"

If you think the claim is false, let's see your evidence. No, forget it, don't bother. You're not interested in evidence, and never have been. You're interested in being ad hominem and annoying, apparently having no actual argument to spell out and nothing better to do with your time. Can you spell
P-E-T-T-Y N-O-N-S-E-N-S-E?

Posted by: Bill Otis | Jun 16, 2012 4:15:17 PM

Let's get one thing right, SteveProf. It's the side of people like you that think that the Lawrence Singletons ought to be released into the world.

Posted by: federalist | Jun 16, 2012 6:31:28 PM

federalist --

It would actually be a relief if Mr. Prof had something resembling a thought about Singleton, or Blago or Jerry Sandusky or Madoff or anyone actually newsworthy on a sentencing blog, instead of just sticking his tongue out at commenters he doesn't like. I truly don't see the point of acting like a fourth grader.

BTW, here's a little info on Singleton for those who don't recognize the name, http://en.wikipedia.org/wiki/Lawrence_Singleton

Posted by: Bill Otis | Jun 16, 2012 9:11:32 PM

Bill Otis,

Reading that page, I really have to think it is about some other offender with the same name. Why would North Carolina be talking about someone today that died on Florida's death row in 2001?

Posted by: Soronel Haetir | Jun 16, 2012 11:46:22 PM

Soronel --

The reference to Lawrence Singleton was made by federalist, in a comment discussing a way of thinking that favors the release of, not just the relative small fry in North Carolina, but prisoners provably more dangerous (not that some of the North Carolina crowd aren't also dangerous, drugs and guns being a bad mix).

Singleton is a landmark story of the failure of incarceration -- not because there is too much of it, as is the rote complaint on this site, but because there wasn't nearly enough. As you will have seen, Singleton was put on smiley-face, let's-all-be-compassionate parole after serving 14 years of a sentence that should have kept him away from civil society forever (actually he should have been executed, but that's another story). It took him only days post-release to murder a mother of three.

Gross abuses of the public trust and contempt for public safety, like what when on with Singleton -- abuses that cost innocent people their lives -- tell us something. What they tell us is an unpopular message on this defense-oriented blog. The message is that the much-detested remedy of incarceration keeps us safer, indeed much safer. This is really not the subject of much argument among serious people, so startling are the numbers over the last 20 years. But it's not just numbers. It's stories like the Singleton story.

I applaud federalist for bringing it up. No, it doesn't have anything directly to do with North Carolina (nor did he or I say otherwise). But it raises the long overdue question about why there is so much outrage about the North Carolina cases, yet so much snoozing about the thoroughly preventable murder that too-ready parole facilitated in the Singleton case.

Posted by: Bill Otis | Jun 17, 2012 7:33:32 AM

Here is a brief to correct an illegal sentence albeit on other grounds.

United States of American v Peltier, No. C77-3003.

Posted by: George | Jun 17, 2012 8:45:28 AM

While reading that brief, I kept wondering why doesn't mention Singleton once, not even once. Would you care to explain that Mr Bill or federalist? It's really confusing.

Posted by: George | Jun 17, 2012 8:50:55 AM

Mr. Bill, great argument at 7:33:22.

Now, not only are all sex offender potential Singletons, so are all liberals (liberal in the due process sense). Because as we know, " abuses of the public trust and contempt for public safety, like what when on with Singleton -- abuses that cost innocent people their lives -- tell us something." Tell us that those who condone due process also condone such crimes and are therefore likely commit such crimes. So they should all be shipped off to an island like Ann Coulter wants.

There is a two word response that would be more concise, but I try to keep my arguments more rational here.

Posted by: George | Jun 17, 2012 9:10:57 AM

George --

"While reading that brief, I kept wondering why doesn't mention Singleton once, not even once. Would you care to explain that Mr Bill or federalist? It's really confusing."

You'd have to ask the lawyer who wrote it, but my guess is that the Singleton case was omitted because it's an embarrassment to the incarceration-is-bad side.

The omission of adverse cases and facts is a classic tactic among defense counsel. When I was in charge of appeals for the USAO in the EDVA, the issue defendants most frequently raised on appeal was that the evidence was insufficient to sustain the conviction. As often as not, the defendant's brief, in what it laughably called the statement of facts, would go on to describe the evidence PRESENTED BY THE DEFENSE, giving either short shrift or no mention at all to the government's evidence, upon which (obviously) the conviction was based.

So no, George, given my experience, it scarcely needs an explanation why defense arguments omit nasty cases or facts. That's the way it works now.

Posted by: Bill Otis | Jun 17, 2012 1:01:58 PM

George --

"...abuses of the public trust and contempt for public safety, like what when on with Singleton -- abuses that cost innocent people their lives -- tell us something."

Correct. That's what I said. What I did not say -- and you simply make up out of thin air -- is your next line: "Tell us that those who condone due process also condone such crimes and are therefore likely commit such crimes."

Give it a rest. I am one of those who not only "condones" due process; I participated in its application for many years, uniformly with the oversight and approval of the federal courts.

And what would your record be in that regard, other than sitting on the sidelines complaining?

To condone due process is, however, scarcely to condone the outcome when the process IN A SPECIFIC CASE goes awry, and produces predictably awful substantive results. The parole system that facilitated the murder of Singleton's next victim was a disgrace, as his case (but hardly only his case) helped illustrate. It led to the much needed reform of parole and, more generally, to cutbacks in early release. Now that these reforms have worked, and complacency is starting to set in, your side wants to undo them by sweeping Singleton and similar scandals under the rug, lest the electorate remember why the reforms were needed. To his credit, federalist blew the whistle on it, and now you're furious.

Go be furious. It won't reverse what happened in Singleton or the lessons to be learned from what happened. These lessons have zip to do with Ann Coulter, but a lot to do with improved respect for putting the basic safety of future victims ahead of brain dead, robotic "compassion" for their victimizers.

Posted by: Bill Otis | Jun 17, 2012 1:27:08 PM

". . . but a lot to do with improved respect for putting the basic safety of future victims ahead of brain dead, robotic "compassion" for their victimizers."

Au contraire, Bill. These people are dumb, but not "brain dead." They simply think their so-called enlightenment more important than the lives of innocent people. They're moral pygmies.

They will call us bloodthirsty, yet it is their policies which cause untolled bloodshed. All because a "be nice to criminals" approach is somehow a measure of morality. Like everything liberal--it's easy to be nice when others pay the price. Like the college presidents who vehemently support affirmative action, knowing full well that they're not the ones who have to pay the price. It's easy to be nice when others pay the price in blood.

And the funny thing is--liberals always complain about hypocrisy --but here, we wont see any of them yapping about Holder when nothing gets done about this. I won't speak for others--but I wouldn't see myself varying my opinion about innocent people in jail based on the political party of the person responsible to correct it.

Posted by: federalist | Jun 17, 2012 1:42:14 PM

federalist --

"...it's easy to be nice when others pay the price."

Bingo. That about sums it up.

It also explains why, when someone points to a case in which the price can be identified, the compassion-uber-alles side goes ballistic (either that or, more shrewdly, just refuses to discuss it).

Posted by: Bill Otis | Jun 17, 2012 3:14:51 PM

Mr. Bill, do you remember the article?

"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."

Are you going to use your "real" name and stand outside the prison whenever these 60 men are released and tell them they are degenerates who will cut off the arms of little girls?

Are you brave enough to take your position to them personally?

If not, then I would say, as I previously argued only it went over your head, Singleton is IRRELEVANT! Not only is Singleton IRRELEVANT my bet would be that 99% of inmates would probably want to kill him themselves, which means they are just like you. Not only that, 99.9% would never commit any crime anything like what Singleton did, so Singleton is IRRELEVANT 99.9% of the time.

As you say, it's not rocket science. This is precisely why a sentence should be tailored to the defendant. Or maybe you used to call federalist as a witness during sentencing and have him yell Singleton, Singleton all the way to the stand in support of the stiffer sentence for every individual (an important word, individual - not collective, but individual). Is that what you did?

Of course you didn't. Everyone would know it was irrelevant. And yet you try to make it relevant to every sentence now. You call that intellectual honesty?

Posted by: George | Jun 17, 2012 7:59:46 PM

George --

"Are you going to use your "real" name and stand outside the prison whenever these 60 men are released and tell them they are degenerates who will cut off the arms of little girls?"

No, I have no interest in standing outside prisons to tell releasees anything in particular, and still less to tell them something that I don't know to be true.

"Are you brave enough to take your position to them personally?"

Someday, I hope it will be possible for you Lefties to understand that this site is not about me and what you evidently take to be my personal deficiencies. I performed my job in court without the "benefit" of anonymity, which I do not seek or use here or anyplace else. My bravery or lack thereof can be judged by people who know me, of whom you are not one.

Singleton is relevant to the question of balancing the danger to future victims against the asserted benefits of early release. I understand your desire to dismiss Singleton but I do not share it. We should learn from past mistakes, and yes, it is intellectually honest, indeed essential, to discuss those mistakes for however much it throws into doubt the thoughtless, kneejerk, ideologically driven instinct to reduce incarceration simply for reduction's sake.

Posted by: Bill Otis | Jun 17, 2012 11:36:47 PM

Mr. Bill said "I understand your desire to dismiss Singleton but I do not share it. We should learn from past mistakes, and yes, it is intellectually honest, indeed essential, to discuss those mistakes for however much it throws into doubt the thoughtless, kneejerk, ideologically driven instinct to reduce incarceration simply for reduction's sake."

Liar. I never dismissed Singleton and even said most would want to kill him like you said he deserved the death penalty, and then you try to preach about intellectual honesty. Show us one post, just one, ANYWHERE in any of these posts on this site, by me or by anyone else who said it was a good thing Singleton got out to torture a little girl. Or one post that condones it in any way or dismisses Singleton's crime specifically (not you putting words into someone's mouth like you tried to do above). Just one. All anyone as argued as far is I know is that not everyone else is Singleton. It's not rocket science. Even kindergartners know that someone shouldn't be punished for something someone else did.

Posted by: George | Jun 18, 2012 1:23:42 AM

well i dont' know a thing about Singleton. What i do know is that these individuals are serving prison sentences for a crime that DID NOT EXIST! In my book the Judges, DA's and Defense Attorneys are all GUILTY in that crime once they were notifed they had in FACT and LAW convicted people of a CRIME THAT DID NOT EXIST!

NOTHING else matters.

this is the same type of illegal criminal stupdiity that has allowed the explosion of CRIMINAL LAWS covering the actions of ex sex criminals AFTER THE FACT!

Posted by: rodsmith | Jun 18, 2012 1:43:09 AM

George --

"I never dismissed Singleton..."

Of course you did. You said, and I will quote, "Singleton is IRRELEVANT 99.9% of the time." To say that the case is irrelevant virtually all the time is to dismiss it. If you think differently, buy yourself a dictionary.

"Show us one post, just one, ANYWHERE in any of these posts on this site, by me or by anyone else who said it was a good thing Singleton got out to torture a little girl."

You're confused, George. He didn't get out to torture a little girl. He was in to begin with as a result of his torturing her (by raping her and cutting off her forearms). He then got out via parole (after 14 years), only to murder a mother of three. It was his release that cast a needed spotlight on the hazards of lax parole standards, leading to their reform.

"Even kindergartners know that someone shouldn't be punished for something someone else did."

And adults know that in designing a punishment/parole SYSTEM, risk has to be taken into account, and the way risk gets assessed is by looking at past episodes of flagrant failure, of which Singleton's release was one (although hardly the only one).

And George, it's just so macho of you to snarl "liar" from your cover of Internet anonymity, directing it to someone who never hides his name, identity or background. You are of course welcome to say it to my face, but somehow I just don't think you're about to, since that would require you to crawl out of the Anonymous Hole to try it. Still, I'm sure we're all in awe of what a Really Tough Guy you are.

Posted by: Bill Otis | Jun 18, 2012 8:15:58 AM

Hey, Otis, fuck you.

Posted by: Publius | Jun 18, 2012 9:47:08 AM

Publius --

It's imprudent for those on your side so obviously to let the mask drop.

Posted by: Bill Otis | Jun 18, 2012 10:51:45 AM

Mr. Bill, I thought that multilevel funny. But you have to know who Publius is.

Anonymity in this period was not simply a charming diversion but a matter of personal survival.

[. . .]Alexander Hamilton and James Madison shared the famous moniker ‘‘Publius.’’ When they disagreed over George Washington’s neutrality policies, they simply spawned new identities as ‘‘Helvidius’’ and ‘‘Pacificus.’’ Because of this historical record, the use of anonymity was firmly ingrained in American society and, as noted by the Supreme Court, ‘‘under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.’’ Jonathan Turley

Registering Publius: The Supreme Court and the Right to Anonymity

www.cato.org/pubs/scr/2002/turley.pdf

Hattip to https://axiomamuse.wordpress.com/tag/anonymity/

Posted by: George | Jun 19, 2012 3:43:18 PM

George --

"Anonymity in this period was not simply a charming diversion but a matter of personal survival."

Anonymity on this forum has nothing to do with survival but a lot to do with ducking accountablilty for analytical gems like, "Hey, Otis, fuck you."

Of course a whole bunch of posters find no need for anonymity, including, other than me, Alan Chasset, Marc Shepherd, Mark R. Levine, Soronel Haetir, Jim Gormely, Bruce Cunningham, Tim Holloway, Michael Drake, Kent Scheidegger, Stan Edelman, John Minock and a raft of others. Oddly, all of them seem to do just fine signing there names.

Posted by: Bill Otis | Jun 19, 2012 4:35:17 PM

Mr. Bill, I suggest you take it up with ‘‘Publius.’’ ‘‘Helvidius’’ and ‘‘Pacificus.’’

Cite the case where SCOTUS found a life must be in danger before anonymous posting is "an honorable tradition of advocacy and of dissent.’’ If you don't agree with that, tough. Go for a constitutional amendment. Your real name does not make your right.

Posted by: George | Jun 19, 2012 7:26:02 PM

George --

"Your real name does not make your right."

Just so, and I never claimed otherwise. It does, however, show that I am willing publicly to stand behind what I say and be accountable for it. The same is true of dozen or so other posters I named (the majority of whom are more on your side than mine).

When someone, like "Publius," writes, as his total contribution, "Hey, Otis, fuck you," that has nothing to do with the grand Constitutional values you foolishly invoke. It has to do with being a post-and-run juvenile jerk.

My father taught me to either be willing to take open responsibility for what I say, or don't say it. Could you tell me what's wrong with that lesson?

Posted by: Bill Otis | Jun 19, 2012 8:06:08 PM

With all due respect to your father, cite the case supporting it has nothing to with grand, or petty, or no constitutional values I so foolishly assume you cannot cite.

Bill's Law does not rule here. Our host, while of course not disrespecting your father, respects the First Amendment. He is free to change his mind and decide regulation is necessary. Start your own blog if you don't like it.

By the way, do you welcome federalist's posts over at Crime and Consequences? Yes, you do. What did your father say about hypocrites?

Posted by: George | Jun 19, 2012 8:56:38 PM

George --

I never said the First Amendment, or any case, or Doug's rules require a commenter to give his name. It is required by standards of character, specifically the willingness to stand behind what you say and take responsibility for it.

I do and so do many others, a fact you don't deny. Federalist is a friend -- I've had lunch with him several times. He may be unknown to others, but assuredly he is not unknown to me.

"Start your own blog if you don't like it."

I'm already a contributor on Crime and Consequences, as you know. I don't need to start a blog.

When a dozen commenters (at least) sign their names, you can sign yours too. The reason you don't is that you want to stay hidden. Why?

Posted by: Bill Otis | Jun 19, 2012 11:37:34 PM

Mr. Bill, none of your damn business. Get it? So federalist was always known when posting at Crime and Consequences and therefore you are not a hypocrite. I have to agree with Publius at this point.

Posted by: George | Jun 20, 2012 10:42:11 AM

George --

You never disagreed with him. The only difference, until now, was that you preferred to pose as a gentleman.

Posted by: Bill Otis | Jun 20, 2012 11:57:23 AM

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