Wednesday, March 26, 2014

Without much to say about the Second Amendment, SCOTUS gives broad reading to federal firearm possession crime

In a unanimous ruling (with two separate concurrences), the Supreme Court this morning interpreted broadly in US v. Castleman, No. 12–1371 (S. Ct. Mar. 26, 2014) (available here) the federal crime set forth in, 18 U.S.C. § 922(g)(9), prohibiting anyone who has been convicted of a “misdemeanor crime of domestic violence” from ever possessing a gun. Here is how the main opinion in Castleman, authored by Justice Sotomayor, gets started and its final two paragraphs:

Recognizing that “[f]irearms and domestic strife are a potentially deadly combination,” United States v. Hayes, 555 U. S. 415, 427 (2009), Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U. S. C. §922(g)(9).  The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. App. 27. The question before us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.”  We hold that it does....

Finally, Castleman suggests — in a single paragraph — that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms.  But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman’s cursory nod to constitutional avoidance concerns.

Castleman’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualifies as a “misdemeanor crime of domestic violence.”  The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

Notably, there are separate concurrences by Justice Scalia (author of the landmark Heller Second Amendment ruling) and Justice Alito (author of the follow-up McDonald ruling describing gun possession as a fundamental right). But neither Justice seems even a bit concerned by a broadened interpretation of a federal statute that makes forever criminal the possession of a firearm by millions of persons who have been convicted of only a certain type of misdemeanor.

For many of the reasons set forth in the various Castleman opinions (which I need to read carefully before commenting further), I think the Justices are on solid ground with statutory interpretation in this case. But what I think makes the case truly interesting and telling is what short shrift is given to the supposedly fundamental rights protected by the Second Amendment even by all five Justices who have previous spoke grandly about these rights in Heller and McDonald.

March 26, 2014 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (21) | TrackBack

Wednesday, March 05, 2014

Intriguing SCOTUS mens rea ruling in Rosemond applying 924(c) gun charge

The Supreme Court handed down one criminal justice ruling this morning in Rosemond v. US, No. 12–895 (S. Ct. March 5, 2014) (available here).  Here is the intriguing composition of the Court in this 7-2 ruling:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined in all but footnotes 7 and 8.  ALITO, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined.

Here is how Justice Kagan's opinion for the Court gets started:

A federal criminal statute, § 924(c) of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.”  In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense.  We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.  We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.

Here is how Justice Alito's partial dissent gets going:

I largely agree with the analysis in the first 12 pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point.  Specifically, I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from en­gaging in the conduct at issue. Ante, at 13. This rule represents an important and, as far as I am aware, un­precedented alteration of the law of aiding and abetting and of the law of intentionality generally.

March 5, 2014 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, January 15, 2014

SCOTUS again struggling with state-federal crime intersection in Castleman

The Supreme Court today had oral argument in a challenging federal criminal case today, and SCOTUSblog has lots of great coverage of the issues and today's argument in US v. Castleman thanks to two post today by Amy Howe. Here and links to both SCOTUSblog posts, along with the start of the two lengthy entries:

Argument preview: Court once again considers when prior state convictions result in federal penalties

Some federal laws impose or enhance penalties based on the defendant’s prior criminal convictions. For example, the Armed Career Criminal Act requires a longer sentence for a defendant who has been convicted of being a felon in possession of a firearm and has three prior convictions for “violent felonies.” Even though Congress generally defines terms like “violent felonies,” those definitions may not always match up with the elements of a crime under state or tribal law, requiring the courts to determine whether a particular state offense is a qualifying prior conviction for purposes of federal law.

That is the question before the Court this morning in the case of James Castleman, in United States v. Castleman. The federal government charged Castleman with a violation of a federal law, 18 U.S.C. § 922(g)(9), which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines “misdemeanor crime of domestic violence” as a misdemeanor under federal, state, or tribal law (1) by someone who (as relevant here) has a child with the victim, which (2) “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

Argument report: Balancing over- and under-inclusiveness

After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.

January 15, 2014 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Thursday, January 09, 2014

"Are there no limits on Second Amendment rights?"

The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center.  After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.

January 9, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, December 27, 2013

As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?

Reagan_assassination_attempt_3The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays."  Here are the basics:

John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department.  No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.

His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.

Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va.  He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away.  Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.

On average, a person convicted of a violent crime in America serves about five years in prison.  Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....

Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month.  The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....

The hearing did provide some droll moments.  In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.”  To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”

Hinckley’s case contains some valuable lessons:  The insanity defense is very rarely used in America and usually fails when it is used.  Hinckley succeeded, but what has it gotten him?  More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.

Before Hinckley shot Reagan, he had been stalking Jimmy Carter.  In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage.  He paid a fine of $62.50 and was released from custody.  Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47.  Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.

Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun.  In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws.  His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.”  The National Rifle Association condemned Reagan’s statement.

St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients.  As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010.   St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s.  About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.

As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.

December 27, 2013 in Celebrity sentencings, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Friday, November 29, 2013

Louisiana Supreme Court at crosshairs of strong gun rights and tough drug laws

Cross-hairAs reported in this effective local article, headlined "Court considering second major gun law: La. drug-gun statute latest to face review," the top court in the Pelican State has a lot of interesting legal issues to sort out in the wake of state voters having last year approved by a gun-rights constitutional amendment backed by the National Rifle Association.  Here are the particulars:

Amid the growing confusion over whether Louisiana’s litany of gun crimes violates its residents’ turbocharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?

Rico Webb, a 22-year-old caught in a car with one marijuana cigar and a gun, points to a state constitutional amendment passed last year, applauded by conservatives and the National Rifle Association, that for the first time in American history declared gun ownership a fundamental right in Louisiana, subject to the same level of judicial scrutiny as free speech and voter equality.

The amendment provoked an avalanche of legal challenges to the state’s major gun-crime laws. At least three judges have declared various criminal statutes unconstitutional. The Louisiana Supreme Court is tasked with sorting out the mess.

The high court already is considering the statute that forbids certain felons from possessing firearms. It heard oral arguments last month, and its decision is pending.  In the meantime, the court agreed on Friday to take up Webb’s challenge to the law that punishes the possession of guns and drugs with five to 10 years in prison without the possibility of parole....

The constitutional amendment sailed through the Legislature last year and received overwhelming support from voters at the ballot box. Its proponents, both inside and outside the Legislature, defended the measure as a guarantee of freedom if federal gun protections were to somehow fall.

But critics described it as an unnecessary law that solved no problem.  Louisiana already had among the most liberal gun laws in the nation. All the amendment has accomplished, they say, is widespread constitutional chaos that could endanger public safety and waste hundreds of courthouse hours on the taxpayers’ dime.

The measure was pitched by conservative legislators as a state equivalent to the Second Amendment.  But in practice, it goes far past the protections offered by the U.S. Constitution.  The amendment erased language in the law that allowed the Legislature to prohibit carrying a concealed weapon and specified that, for the first time anywhere in the nation, gun laws would be subject to a “strict scrutiny” test, the highest level of judicial review.

“What the Legislature did is it took discretion away from itself,” said Raymond Diamond, a LSU law professor and Second Amendment scholar.  “This pro-gun Legislature voted to bind itself, and future Legislatures that might not be so pro-gun, from undertaking gun control. It has similarly binded local communities in ways that right now we really don’t understand.”  He has described the amendment as “a can of worms.”

It pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a strict scrutiny test.  That test presumes that every person has the right to be armed. Any law that seeks to infringe that right must pass a grueling legal test that kills more than two-third of the laws that come up against it.  The state must show that the law serves a compelling government interest, and that it is so narrowly defined that there is no less restrictive way of achieving that interest.

The arguments against the current statutes are similar, in that they equally dole out “heavy-handed penalties” to vast groups of people.  The drug statute treats people caught with small amounts of marijuana the same as those with large amounts of more serious drugs.  The felon-with-a-gun statute equates burglars with murderers. It includes a list of 150 felony offenses, characterized as drug or violence crimes, and says that anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.

The state supports that law by arguing that those with a demonstrated capacity to break the law are more dangerous when armed. Its position on the drugs-and-gun statute is the same: Drugs beget violence and guns make volatile situations deadly.

But Webb’s attorney, New Orleans public defender Colin Reingold, argues that the state cannot prove, under a strict-scrutiny test, that a single marijuana blunt makes him more dangerous when armed than anyone else, particularly since the possession of alcohol and guns is not equally restricted.  “The true danger of a firearm comes not from the manner in which its owner keeps or bears it, but rather from how the citizen uses the weapon,” Reingold wrote in his appeal to the Supreme Court.

Webb, who has no criminal record, was arrested on Sept. 10, 2012, when police pulled over his girlfriend for having a broken taillight.  He confessed to police that he had the blunt in his backpack and said the gun on the floorboard was his, too.  The gun was legal and the marijuana alone would have amounted to a misdemeanor, prosecuted in Municipal Court and typically punished with a fine and probation.  But combined, the gun and pot became a felony with a minimum sentence of five years and a maximum of 10 years, without the possibility of parole.

Webb appealed his charge to the Louisiana Supreme Court, which announced on Friday it would hear the case.  Over the years, the courts will have to sort out which of the 80 other gun crimes on Louisiana law books remain constitutional under the new amendment.

The state has become an experiment. “This is an exciting time because there is some risk that some of the laws will be declared unconstitutional,” Diamond said.  “Everybody’s very interested to see what the court’s going to do with it.”

Various prior Second Amendment and gun policy posts:

November 29, 2013 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 19, 2013

Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences

I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications.  This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:

In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....

One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.

10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...

The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.

The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.

The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.

The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.

Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders.  I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.

Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime.  Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past.  Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.

November 19, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Monday, November 18, 2013

Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants

In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:

Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9).  Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life.  Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms.  In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii).  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.

In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:

The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.

November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack

Monday, October 21, 2013

Chicago Sun-Times editorial explains why "Mandatory-minimum sentencing doesn’t work"

Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:

Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors. The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.

In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.

Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.

Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.

Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars. But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence? Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?

It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?

The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.

In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes. But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.

Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....

On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.

October 21, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, October 17, 2013

"Is the Supreme Court only willing to work at the fringes of the Second Amendment?"

The question in the title of this post is the main headline of this notable and effective new commentary by Lyle Denniston at the blog of the National Constitution Center. (Hat tip: How Appealing.)  Here are excerpts:

The Constitution’s Second Amendment, the Supreme Court ruled five years ago, protects an individual’s personal right to have a gun for self-defense.  It has returned to the Second Amendment only once since then, in a decision three years ago extending that personal right across the nation, so that it can be used to challenge state and local gun control laws as well as such laws at the federal level.

Since then, more than a half-dozen test cases on the issue have been filed at the court, and each one has been bypassed.  It appears that no one on the court is pushing to return to the issue; it takes four votes on the bench to grant review, and there is no reliable indication that any case has drawn even one vote....

Although lower courts have issued an array of differing and sometimes conflicting decisions (the pattern that usually draws in the Supreme Court), the scope of the Second Amendment right is still in a kind of constitutional limbo.  It remained there on Tuesday, when the Justices turned aside an appeal by a Maryland man, Raymond Woollard, who lives near Baltimore. He once had a permit to have a gun that he could carry outside his home, because he had shown he faced a potential threat from a son-in-law who had shown violent tendencies.  But when he tried to get the permit renewed, he was turned down, on the premise that he had not proved that he still faced a threat to his safety.  The court’s refusal to hear his appeal came quickly, after the Justices’ first fleeting look at the case. That has been the pattern for the past several years....

The message that the Supreme Court has seemed to be sending — at least up until now — is that it is in no hurry to resolve open questions about how far constitutional gun rights extend. It has not even agreed to spell out in a final way the constitutional test that it will apply to judge the validity of any specific gun control law.

As this trend continues, it tends to put an exaggerated emphasis on each new case that reaches the Supreme Court: Will this be the one that will finally get the Justices’ attention; if not, what will it take?  Since the Supreme Court is the sole entity to determine the scope of the Second Amendment right (aside from the legislatures that can put together a clarifying constitutional amendment), judges and legislators across the country have to wonder when they will get new constitutional guidance.

Especially because the Supreme Court left so much unclear about the scope and application of the Second Amendment in Heller, and particularly now that these issues have been "percolating" in lower courts for a half-decade, I think it is getting to be past time for the Justices to take up some "Heller application" cases.  In this setting, the SCOTUS is starting to seem a bit like too many others decision-makers inside the Beltway: apparently unwilling or unable to make hard decisions about how competing priorities ought to be balanced in the development of Second Amendment jurisprudence, the Justices so far are avoiding making any decisions at all.

October 17, 2013 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, October 15, 2013

SCOTUS takes up another federal criminal gun case while dodging bigger Second Amendment contentions

The Supreme Court this morning granted review on a technical federal gun crime issue, but denied review on a Second Amendment case looking to figure out the reach of SCOTUS rulings in Heller and McDonaldHere is the SCOTUSblog summary of these developments:

The Court also granted review ... on the legality under federal law of the owner of a gun selling it to someone else, if the new owner can have a gun legally.  That case is Abramski v. United States (12-1493).  However, the Court followed its recent pattern of refusing to hear constitutional challenges to gun control laws under the Second Amendment, turning aside a Maryland case seeking to expand the personal right to have a gun beyond the home (Woollard v. Gallagher, 13-42).

Notably, Abramski is the second technical statutory federal gun crime case that the Supreme Court has decided to resolve this Term.  Two weeks ago, the Court granted cert in US v. Castleman, which concerns whether a "Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a 'misdemeanor crime of domestic violence' under 18 U.S.C. § 922(g)(9)."

Based on a too-quick review of the cert briefing in these cases, I doubt that either Abramski or Castleman will result in a major ruling concerning federal criminal law or sentencing.  But, especially given the relative dearth of significant sentencing cases on the SCOTUS docket so far, I will keep these cases on my persona watch-list.  I think either or both cases could develop into Second Amendment sleepers if some of the briefing or some of the Justices contend that there is more at stake in these cases than just a technical federal statutory crime issue.

October 15, 2013 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, October 14, 2013

Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in Chicago

This new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes.   Here are excerpts:

Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.

The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.

The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.

“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.

A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.

“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...

Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.

Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years.  Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....

Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns.  But he’s worried about first-time offenders getting three-year prison terms....

Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.

The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).  

In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:

As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....

JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments.  First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill.  This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.

October 14, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, September 26, 2013

New trial granted for defendant subject to long mandatory sentence in Florida "warning shot" case

As reported in this news report, headlined "Marissa Alexander will get a new trial," today there was a notable development in a notable Florida criminal case that garnered some additional attention in the wake of the George Zimmerman prosecution. Here are the basics:

Marissa Alexander, the African-American woman who was sentenced to 20 years for discharging a firearm in Florida despite pleading Stand Your Ground against her husband, will get a new trial. Alexander, 32, said she fired a bullet at the ceiling because she was afraid of her husband. No one was injured. It took 12 minutes for the jury to convict her.

“We reject her contention that the trial court erred in declining to grant her immunity from prosecution under Florida’s Stand Your Ground law,” wrote Judge James H. Daniel, “but we remand for a new trial because the jury instructions on self-defense were erroneous.”

Alexander, who had given birth the week before, testified that after an altercation regarding texts from her ex-husband, she locked herself in the bathroom. Her husband Rico Gray broke through the door, grabbed her by the neck, and shoved her into the door. She ran to the garage, found she couldn’t get the door open, and returned with a gun. When Gray saw the gun, he said, “Bitch, I’ll kill you.” Alexander testified that firing the gun into the air as a warning shot was “the lesser of two evils.”

The jury rejected her self-defense argument, and instead Alexander was sentenced under the “10-20-Life” law, which carries a series of mandatory minimum sentences related to gun crimes. The prosecutor in her case was Angela Corey, who also prosecuted George Zimmerman who was acquitted in the death of Trayvon Martin....

The appeals court judge ruled that the lower court judge improperly put a burden on Alexander to prove that the firing was in self-defense. “The defendant’s burden is only to raise a reasonable doubt concerning self-defense,” Daniel wrote. “The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt.” He ordered a retrial. A separate proceeding would determine whether Alexander could be released on bail pending that trial.

The relatively short opinions in this case (a majority opinion and a concurrence) can be accessed at this link.

Prior related posts:

September 26, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Sunday, August 11, 2013

New York Times column spotlights extreme application of ACCA in US v. Young

A few weeks ago in this post, titled "A few shotgun shells landed a man 15 years in federal prison," I reported on a remarkable federal sentencing story out of Tennessee involving an extreme application of the 15-year mandatory minimum federal sentencing term in the Armed Career Criminal Act.  I am now pleased to see Nicholas Kristof giving this case some attention via this new op-ed column headlined "Help Thy Neighbor and Go Straight to Prison."   Here are excerpts of a piece about a case that I hope gets lots and lots of attention as it makes its way up to the Sixth Circuit:

If you want to understand all that is wrong with America’s criminal justice system, take a look at the nightmare experienced by Edward Young.

Young, now 43, was convicted of several burglaries as a young man but then resolved that he would turn his life around.  Released from prison in 1996, he married, worked six days a week, and raised four children in Hixson, Tenn.

Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings.  He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them. “He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.”

Then Young became a suspect in burglaries at storage facilities and vehicles in the area, and the police searched his home and found the forgotten shotgun shells as well as some stolen goods.  The United States attorney in Chattanooga prosecuted Young under a federal law that bars ex-felons from possessing guns or ammunition. In this case, under the Armed Career Criminal Act, that meant a 15-year minimum sentence.

The United States attorney, William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings.

In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison.  It didn’t matter that the local authorities eventually dismissed the burglary charges.

So the federal government, at a time when it is cutting education spending, is preparing to spend $415,000 over the next 15 years to imprison a man for innocently possessing seven shotgun shells while trying to help a widow in the neighborhood.  And, under the law, there is no early release: Young will spend the full 15 years in prison.

This case captures what is wrong with our “justice” system: We have invested in mass incarceration in ways that are crushingly expensive, break up families and are often simply cruel. With less than 5 percent of the world’s population, the United States has almost one-quarter of the world’s prisoners.

This hasn’t always been the case, but it is the result of policies such as mandatory minimum sentences since the 1970s.  In 1978, the United States had 307,000 inmates in state and federal prisons. That soared to a peak of more than 1.6 million in 2009. Since then, the number of inmates has declined for three consecutive years to 1.57 million in 2012.  The number of juveniles detained has also begun to drop since peaking in 2000, although the U.S. still detains children at a rate five times that of the next highest country.

In short, there’s some hope that this American experiment in mass incarceration has been recognized as a failure and will be gradually unwound.  Among the leaders in moving away from the old policies are blue states and red states alike, including New York and Texas. But America still has twice as many prisoners today as under President Ronald Reagan.

Almost everyone seems to acknowledge that locking up vast numbers of nonviolent offenders is a waste of money. California devotes $179,400 to keep a juvenile in detention for a year, and spends less than $10,000 per student in its schools. Granted, mass incarceration may have been one factor in reduced crime in the last couple of decades; there’s mixed evidence. But, if so, the economic and social cost has been enormous — including the breakup of families and the increased risk that children of those families will become criminals a generation later....

When almost 1 percent of Americans are imprisoned (and a far higher percentage of men of color in low-income neighborhoods), our criminal justice system becomes a cause of family breakdown and contributes to the delinquency of a generation of children.  And mass incarceration interacts with other government policies, such as the way the drug war is implemented, to have a disproportionate effect on African-Americans.  Black men use marijuana at roughly the same rate as white men but are more than three times as likely to be arrested over it.

Young is particularly close to his children, ages 6 to 16.  After back problems and rheumatoid arthritis left him disabled, he was a stay-at-home dad while his wife worked in a doctor’s office.  When the judge announced the sentence, the children all burst into tears.  “I can’t believe my kids lose their daddy for the next 15 years,” his wife, Stacy, told me.  “He never tried to get a firearm in the 16 years I was with him. It’s crazy. He’s getting a longer sentence than people who’ve killed or raped.”...

I asked Killian, the United States attorney, why on earth he would want to send a man to prison for 15 years for innocently possessing seven shotgun shells. “The case raised serious public safety concerns,” Killian said.  Oh.

The classic caricature of justice run amok is Inspector Javert in Victor Hugo’s novel “Les Misérables,” pursuing Jean Valjean for stealing bread for hungry children.  In that case, Valjean knew that he was breaking the law; Edward Young had no idea.

Some day, Americans will look back and wonder at how we as a society could be much more willing to invest in prisons than in schools. They will be astonished that we sent a man to federal prison for 15 years for trying to help a widow.

Recent related post:

August 11, 2013 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (17) | TrackBack

Monday, August 05, 2013

"Va. gun crime drops again as firearm sales soar"

The title of this post is the headline of this notable big article recently appearing in the Richmond Times-Dispatch.  Here are excerpts:

Gun-related violent crime continues to drop in Virginia as the sales of firearms continue to soar, a pattern that one local criminologist finds interesting “given the current rhetoric about strengthening gun laws.”

Major gun crime collectively dropped for a fourth consecutive year statewide, while firearms sales climbed to a new record in 2012 with 490,119 guns purchased in 444,844 transactions — a 16 percent rise over 2011, according to federally licensed gun dealer sales estimates obtained by the Richmond Times-Dispatch.

The proliferation of guns occurred as the total number of major reported crimes committed with all types of firearms in Virginia dropped 5 percent, from 4,618 offenses in 2011 to 4,378 last year, according to Virginia State Police data.  Looking back over seven years, total firearm sales in Virginia have risen a staggering 101 percent from 2006 to 2012, while gun-related crime has dropped 28 percent during that period.

“This appears to be additional evidence that more guns don’t necessarily lead to more crime,” said Thomas R. Baker, an assistant professor at Virginia Commonwealth University’s L. Douglas Wilder School of Government and Public Affairs who specializes in research methods and criminology theory.

“It’s a quite interesting trend given the current rhetoric about strengthening gun laws and the presumed effect it would have on violent crimes,” Baker added.  “While you can’t conclude from this that tougher laws wouldn’t reduce crime even more, it really makes you question if making it harder for law-abiding people to buy a gun would have any effect on crime.”

But Josh Horwitz, the leader of a national gun-control group, does not find the comparison of gun crime to legal gun sales particularly significant, and views any perceived correlation between the two sets of data as essentially meaningless.  “Guns sold incident to a background check are less likely to be involved in crimes than guns sold without a background check,” said Horwitz, executive director of the Coalition to Stop Gun Violence. “So the real question — which I don’t think we really know — is what’s the level of gun sales without a background check?

“In other words, if people who buy those guns and have a background check, and keep those guns and don’t sell them, then you would not expect that those guns would affect the crime rate,” Horwitz said. “The important analysis is not the total number of guns sold with a background check, but rather the number of guns sold without a background check.”...

Baker cautioned against drawing any conclusions that more guns in the hands of Virginians are causing a corresponding drop in gun crime, as some academics and gun-rights supporters have argued.  “To substantiate (that) argument, you would need to eliminate a number of other factors that could potentially explain away the relationship of more guns, less crime in Virginia,” Baker said. “Only if the relationship remained after controlling for additional factors could a researcher be more comfortable making the claim that more guns lead to less crime.  But what the data does show is that the ‘more guns, less crime argument’ is certainly possible.”...

Although overall gun-related crime dropped 5 percent last year, murders and non-negligent manslaughter deaths committed with firearms rose 6 percent from 190 in 2011 to 201 last year. But killings with handguns dropped 3 percent.  Killings involving firearms of unknown type increased 42 percent, from 62 in 2011 to 88 in 2012.

Robberies accounted for the largest drop in gun-related crime, falling 11 percent from 2,935 offenses in 2011 to 2,508 last year. Robberies involving handguns dropped 7 percent from year to year....

Although expansion of background checks is the main goal of the Coalition to Stop Gun Violence, Horwitz said his group supports the tighter controls on firearms that were enacted into law in Colorado and New York after the Sandy Hook Elementary School massacre in Connecticut that killed 26.

He acknowledged that those measures — aside from the background checks — will not affect the gun-related crime rate. “It won’t reduce crime,” Horwitz said. “The point is that it decreases the lethality of crime.” He was referring to so-called assault weapons and high-capacity magazines.

August 5, 2013 in Gun policy and sentencing, National and State Crime Data | Permalink | Comments (6) | TrackBack

Monday, July 22, 2013

"A few shotgun shells landed a man 15 years in federal prison"

Young photoThe title of this post is the headline of this remarkable federal sentencing story out of Tennessee.  Here are the details:

In some cases, old mistakes echo across the years. New sins carry the crushing weight of an old life.   In some cases, a criminal past is not forgiven.

Months before he left state prison on burglary convictions in 1996, Edward Lamar Young told his grandmother he was going to be a different man. He would get work, get married and have a family.  The 26-year-old wouldn't steal to get what he needed or wanted.  And soon after he left prison bars behind he fulfilled that promise. He met and married a woman named Stacy.  The couple had four children.

But in late September 2011, he went off track.  He stole tools, tires and weightlifting equipment from vehicles and a business warehouse.  He even had his son with him on one trip, which added a separate charge. A video camera recorded the burglaries. Less than a week later police knocked on the door of his Hixson home. He let them in. They found the tools, but they found something else too, small items inside a drawer that would escalate his punishment far beyond burglary.

Young admits he's done bad things, but he says he's never carried a weapon, never shed another person's blood.  But because of what police found at his house that day -- seven shotgun shells -- his 15-year prison sentence now places him alongside lifelong killers, movie-style gangsters and drug kingpins.  There are homicide convictions that carry sentences half as long in Tennessee state courts. 

Laws designed for the worst of the worst, but written broadly enough to ensnare the less dangerous, subject Young to what even his sentencing judge called a Dickensian penalty. There is a bill in Congress that would give federal judges discretion, untie their hands to ensure punishments fit the crimes.  But that bill is far from passage and would have to apply retroactively, a rarity in many criminal laws, to help Young.

Weeks, maybe months before police came to his home Young had helped a neighbor, a woman named Neva Mumpower.  Her husband had died and she wanted to sell some of their older furniture.  She told Young if he hauled it to the flea market she'd split whatever it sold for.  He did, but kept a chest of drawers at his place. 

A short time later he went through it and found the shells.  Young didn't think much of them.  He put them away so the kids wouldn't come upon them and went on with his day. He'd get them back to Mumpower later or just throw them away.  Except he didn't.

Young confessed to the burglaries and faced state prison time, probably a few years with the likelihood of parole and probation.  Not a proud moment but recoverable.  The 43-year-old man soon discovered that the shotgun shells carried a heavier burden -- a 15-year mandatory federal prison sentence with no possibility of parole.

Standing inside the wood-paneled courtroom in the downtown federal building May 9, Stacy Young knew what was coming but held out a strand of hope.  Mercy, maybe.  She listened as the lawyers droned on about legal definitions, criminal histories and what was right, what was fair. Then the judge told her husband he could speak.

"I just ... I mean, it wasn't ... it wasn't my intent," Ed Young told the judge. "I did find them in the box, and I put them up until I could give them back to her, so my kids wouldn't find them.  I don't think I deserve to grow up without my family, and I don't think my family deserves to grow up without me."  The Youngs' oldest son, who is 16, ran out of the courtroom in tears.  The crying family huddled in the hallway after the sentencing. The youngest son is 6 years old.  He'll be 20 when Ed Young leaves federal prison, a 62-year-old man....

Convicted felons are told they no longer can possess firearms.  Having a gun, even if the felony was a white-collar crime such as wire fraud, means prison time.  What some may know but Young swears he did not, is that possessing ammunition, say seven shotgun shells, is just as bad.

There's nothing in Young's criminal record to show he's ever been accused of carrying a weapon, even in the 20-year-old burglary convictions.  But those burglaries are counted as "violent crimes."  And language is important.  Young's criminal past classified him as an armed career criminal under federal law.  That classification means he faces severe penalties for the rest of his life if he breaks any of the rules.

Young's attorney is flabbergasted. "I don't think there's anything like it at all," said Chris Varner.  "Everything went wrong here." As far as his legal research shows, it is only under the Armed Career Criminal Act that Young's distant convictions can count against him, Varner said.  Other federal sentencing guidelines would not have considered the past convictions because they were so long ago.

Once the charges were filed and the federal grand jury indicted Young, nothing could stop the machine that is federal law.  Prosecutor Chris Poole worked the case.  He declined to comment under U.S. Attorney's Office policy not to speak about active cases.  Young's case is on appeal to the U.S. 6th Circuit Court of Appeals.  But in court documents, Poole explains to U.S. District Judge Curtis Collier that by definition Young's crimes fit the career criminal law and the minimum sentence is 15 years.  The maximum was life.

During the May 9 hearing Collier hinted at his thoughts on the Draconian sentence. "Mr. Young, I don't know if you read a lot, but there was an author who has written a lot of books, and has some overtones here. His name is Charles Dickens," Collier said.

The judge went on to explain the situation and his own lack of power. "This is a case where the Congress of the United States has instructed federal district judges like myself to impose a sentence of at least 180 months, that is, 15 years," Collier said. "... This sentence is not so much a punishment for the present crime as it is a punishment for your history of crimes."

The week after the federal sentencing, prosecutors in state court dismissed the burglary and related charges....

Stacy Young is now a single working mother with a house full of children.  She'll haul them down to Atlanta every other week.  Two of the children will visit the first day, then they'll stay overnight for the other two to see their father the second day.  Ed Young writes letters nearly every day and says he'll keep writing. 

Varner, his attorney, sees the sentence far outweighing the crime and worries what it says about justice. "This is not who we are, we do not do this as a nation," he said.  Stacy, devastated by the outcome, living with the consequences, sees it much more personally. "I don't think he should have 15 years for seven shotgun shells," she said. "I think it's crazy."

July 22, 2013 in Examples of "over-punishment", Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (26) | TrackBack

Friday, June 28, 2013

Since the GOP was so troubled by ATF's work in Fast & Furious, will they now investigate drug-house stings?

Though perceived and perhaps intended as a political witch-hunt, the investigation by the GOP-led House of Representatives into the Fast & Furious program reveals some of the ugly realities of how our federal government commits crimes in order to try to go after criminals. Consequently, I hope there might be more Republican calls for hearings and investigation of ATF practices as a result of this important and huge new investigative report by USA TodayThis lengthy story in the report is headlined "ATF uses fake drugs, big bucks to snare suspects; The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives has locked up more than 1,000 people using controversial sting operations that entice suspects to rob nonexistent drug stash houses. See how the stings work and who they target." Here are excerpts (and a video) from the USA Today report:

 

 

 

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency in charge of enforcing the nation's gun laws, has locked up more than 1,000 people by enticing them to rob drug stash houses that did not exist. The ploy has quietly become a key part of the ATF's crime-fighting arsenal, but also a controversial one: The stings are so aggressive and costly that some prosecutors have refused to allow them. They skirt the boundaries of entrapment, and in the past decade they have left at least seven suspects dead.

The ATF has more than quadrupled its use of such drug house operations since 2003, and officials say it intends to conduct even more as it seeks to lock up the "trigger pullers" who menace some of the most dangerous parts of inner-city America. Yet the vast scale of that effort has so far remained unknown outside the U.S. Justice Department.

To gauge its extent, USA TODAY reviewed thousands of pages of court records and agency files, plus hours of undercover recordings. Those records — many of which had never been made public — tell the story of how an ATF strategy meant to target armed and violent criminals has regularly used risky and expensive undercover stings to ensnare low-level crooks who jump at the bait of a criminal windfall....

Most of the people the ATF arrested in drug-house stings last year — about 80% — already had criminal records that included at least two felony convictions before the agency targeted them. But 13% had never before been found guilty of a serious crime, and even some of those with long rap sheets had not been charged with anything that would mark them as violent.

ATF officials reject the idea that they should focus only on people with violent records. "Are we supposed to wait for him to commit a (obscenity) murder before we start to target him as a bad guy?" said Charlie Smith, the head of ATF's Special Operations Division, which is responsible for approving each sting. "Are we going to sit back and say, well, this guy doesn't have a bad record? OK, so you know, throw him back out there, let him kill somebody, then when he gets a bad record, then we're going to put him in jail?"....

[These stings] are dangerous because, if everything goes the way agents expect, they will be confronting a crew of heavily armed men amped up to commit an especially violent crime. To deal with that risk, the ATF steers the takedowns to remote places such as forest preserves or warehouses where it's easier to take suspects by surprise and where stray bullets won't endanger the public. Then it assembles a small army of federal agents and local police officers. Smith said he recalled one pre-arrest briefing with 170 officers.

Court records show ATF agents and local police officers working with them have shot at least 13 people during takedowns in drug-house stings since 2004, killing at least seven of them. Six were killed by local police officers conducting sting operations as part of an ATF task force. Most came after suspects fired at police or tried to run them down with cars....

The drug-house stings are engineered to produce long prison sentences, and they typically do precisely that. Using court records, USA TODAY identified 484 people convicted as a result of the stings, though there are almost certainly others. Two-thirds were sent to prison for more than a decade, a sentence longer than some states impose for shootings or robberies. At least 106 are serving 20-year sentences, and nine are serving life.

It's the drugs — though non-existent — that make that possible because federal law usually imposes tougher mandatory sentences for drugs than for guns. The more drugs the agents say are likely to be in the stash house, the longer the targets' sentence is likely to be. Conspiring to distribute 5 kilograms of cocaine usually carries a mandatory 10-year sentence — or 20 years if the target has already been convicted of a drug crime.

That fact has not escaped judges' notice. The ATF's stings give agents "virtually unfettered ability to inflate the amount of drugs supposedly in the house and thereby obtain a greater sentence," a federal appeals court in California said in 2010. "The ease with which the government can manipulate these factors makes us wary." Still, most courts have said tough federal sentencing laws leave them powerless to grant shorter prison terms.

To the ATF, long sentences are the point. Fifteen years "is the mark," Smith said. "You get the guy, you get him with a gun, and you can lock him up for 18 months for the gun. All you did was give this guy street creds," Smith said. "When you go in there and you stamp him out with a 15-to-life sentence, you make an impact in that community."

Because it is may be hard to generate too much public sympathy for the persons with criminal records being targeted by these ATF stings, I would be surprised if either Democrats or Republicans will start complaining anytime soon about what USA Today has uncovered about these ATF stings. But perhaps some libertarian leaning folks (paging Senator Rand Paul) will at least respond to this USA Today investigation with calls for greater transparency concerning these programs.

June 28, 2013 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, May 28, 2013

SCOTUS grants cert to resolve mens rea required for 924(c) accomplice liability

Thanks to SCOTUSblog, I see that the Supreme Court has started the short week with a cert grant of note concerning federal criminal law and a sentencing issue whicj has split the circuits.  The grant is in Rosemond v. United States (SCOTUSblog page here), and here is how the folks at SCOTUSblog describe the issue now to be resolved by the Justices (in its next Term):

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

May 28, 2013 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 16, 2013

"Can ‘Smart Gun’ Technology Change the Stalemate Over Gun Violence?"

The title of this post is the headline of this new piece of reporting over at The Crime Report, which echoes some ideas that I have been raising on this blog for a number of years and that I have given extra attention to following the Newtown massacre.  Here are excerpts:

Philadelphia Mayor Michael Nutter issued a challenge to the gun industry yesterday, arguing that the application of “smart gun” technology, designed to program firearms so that only their owners can fire them, could not only save lives but neutralize the concerns of gun rights advocates.

"Why don't you at least try?” Nutter, who also serves as president of the U.S., Conference of Mayors, asked Joe Bartozzi, vice-president of the Connecticut-based firearms manufacturer O.F. Mossberg and Sons.  “Put one on the market and see what happens."

But Bartozzi, speaking at a roundtable for newsroom editors and columnists at John Jay College of Criminal Justice in New York, insisted it wouldn’t work.  Bartozzi said Mossberg had already surveyed focus groups about some of the cutting-edge technology already available, such as personalized rings that could be digitally programmed to recognize the legitimate owner of a weapon.

The response, he said, was overwhelmingly negative.  Customers who wanted guns to protect themselves and their families considered such technology too unreliable, he said. "What if I have to hand the gun to my spouse in an emergency?”  Bartozzi recalled a focus group member asking.

"It’s hard to understand that it represents more than just a piece of steel or plastic.  It represents personal security; it represents security when the police aren't there.  It represents even food when there's no supermarket. It represents self-defense.  It represents liberty and freedom for a lot of people," Bartozzi said....

Nutter and fellow panelist Minneapolis Mayor R.T. Rybak argued that finding technological solutions to the challenge of gun access represented a common sense approach to a problem both sides agreed was a key factor in reducing the kind of gun violence that has afflicted many U.S. cities: the easy access to guns — particularly those sold or trafficked on the black market — to youth gang members and others who otherwise could not get them legally....

The smart gun technology issue, ranging from biometrics to trigger locks, also reflects a wider challenge by gun safety advocates to treat guns as consumer products subject to national safety standards similar to seatbelts in cars or childproof medicine bottles.

Bartozzi, a member of the board of governors of the National Shooting Sports Foundation — the leading industry lobby group — insisted guns are unlike other consumer products subject to federal rules because they are protected by the Second Amendment.  “I think sometimes we confuse what our privileges and rights. Driving a car is a privilege.  You have the right to own a gun,” he said.

Rybak and other speakers at yesterday’s “Under the Gun” roundtable charged that leading gun rights lobbies such as the National rifle Association (NRA) and the NSSF made it harder to reach any compromise because of their objections to both technological solutions and efforts to modernize even the current system for tracking guns used during crimes.

Based in part on prior discussions on this blog (some of which are linked below), I understand fully the reservations that many gun owners and gun-rights activists have about using technology to try to prevent mis-use of firearms.  Nevertheless, I think the development of device that might at least enable one to eletronically disable a stolen or lost firearm could perhaps generate interest in the marketplace, especially if the federal government created tax incentives to encourage use of this kind of gun-safety technology.

More broadly, I think the development of a safer "smart gun" could and should be spurred by some kind of "Project X" private funding scheme through a university or think tank (see example here), especially now that it seems the private marketplace or governments are making much progress on this front.  I suspect just a few millions dollars as a "smart gun" prize (only a fraction of what is being poured into gun policy lobby shops and PACs) could go a very long way to moving forward and ultimately saving innocent lives.

A few recent and older related posts:

May 16, 2013 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 13, 2013

In Chicago for symposium on "Gun Violence and the Second Amendment"

As detailed on this webpage, I am on a panel this morning at the Union League Club of Chicago to help kick off a "symposium on the issue of gun violence and the Second Amendment, co-sponsored by ULCC Public Affairs and the Chicago Bar Association." Here are the details:

ULCC Public Affairs and its Subcommittee on the Administration of Justice, in partnership with the Chicago Bar Association's Human Rights Committee, presents a half-day (8:30 a.m. to 1:30 p.m.) symposium with expert panelists focusing on efforts to curtail gun violence and the parameters of the Second Amendment....

The event begins with continental breakfast at 8:30 a.m. and a panel discussion on the scope and impact of the Second Amendment on the issue of gun violence prevention, moderated by Professor Ann Lousin of the John Marshall Law School.  Panelists for this segment include David G. Sigale (plaintiff's attorney in McDonald, et al v. City of Chicago), Professor Geoffrey R. Stone (former provost of The University of Chicago and dean of its law school), and Professor Douglas Berman (Moritz College of Law at The Ohio State University Law School).

The mid-morning panel, titled "Public Policy Initiatives Related to Gun Control and Gun Violence," will review state and federal legislative responses to gun violence as well as social concerns correlated with gun violence, such as poverty and lack of educational and employment opportunities.  The discussion will be moderated by J. Timothy Eaton of Shefsky & Froelich and will feature panelists Professor Jens Ludwig, University of Chicago; Juliet Leftwich, Legal Director, Law Center to Prevent Gun Violence, and John Tillman, CEO of the Illinois Policy Institute.

As reported in this SCOTUSblog post, the Supreme Court is slated to release orders and opinions at the exact time of my panel discussion.  Based on the blogging variation on Murphy's Law, I am predicting this means that SCOTUS will hand down this morning some of the big sentencing decisions I have been eagerly awaiting, and in turn that I will need a lot more time than usual to report and assses whatever happens.  (Of course, the very fact that I am making this prediction could mean that SCOTUS decides today only some more boring civil rulings that I and other sentencing fans can just ignore.)

May 13, 2013 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (4) | TrackBack