Saturday, December 29, 2012

Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicide

This AP story, headlined "New York woman arrested in connection with murder of 2 firefighters," discusses the federal criminal law follow-up to the depressing ambush murder-suicide that took place in upstate New York earlier this week (discussed here).  Here are some details:

William Spengler raised no alarms in prison for 17 years and for more than a decade afterward.  Well-spoken, well-behaved and intelligent, his demeanor was praised by four straight parole boards that nevertheless denied him parole, worried that bludgeoning his 92-year-old grandmother with a hammer showed a violent streak that could explode again.

After his sentence was up in 1996, he stayed out of trouble until 2010, police said Friday. That's when Spengler went to a sporting goods store with a neighbor's daughter, picked out a Bushmaster semiautomatic rifle and a shotgun and had her buy the guns that the convicted felon couldn't legally possess.  On Monday, he used the weapons to ambush firefighters lured to a blaze he set at his house in upstate Webster, killing two people and wounding three others before killing himself.

On Friday, state and federal authorities charged the woman who bought the guns, 24-year-old Dawn Nguyen, with lying on a form that said she would be the owner of the guns she bought for Spengler.  The charges involve the semiautomatic rifle and the 12-gauge shotgun that Spengler had with him Monday when volunteer firefighters Michael Chiapperini and Tomasz Kaczowka were gunned down.  Three other people, including two other firefighters, were wounded before the 62-year-old Spengler killed himself.  He also had a .38-caliber revolver, but Nguyen is not connected to that gun, police said....

U.S. Attorney William Hochul said Nguyen bought the two guns on June 6, 2010, on behalf of Spengler.  Police used the serial numbers on the guns to trace them to Nguyen.  "She told the seller of these guns, Gander Mountain in Henrietta, N.Y., that she was to be the true owner and buyer of the guns instead of William Spengler," Hochul said.  "It is absolutely against federal law to provide any materially false information related to the acquisition of firearms."

During an interview late on Christmas Eve, she told police she had bought the guns for personal protection and that they were stolen from her vehicle, though she never reported the guns stolen.  The day after the shootings, Nguyen texted an off-duty Monroe County Sheriff's deputy with references to the killings.  She later called the deputy and admitted she bought the guns for Spengler, police said Friday....

As police announced the charges against Nguyen, a clearer portrait of Spengler began to emerge, in the words of wary parole commissioners who kept him locked up until the law said they had to let him go.  At his final parole hearing in 1995, the then-45-year-old Spengler repeated his desire to get out of prison while he still had time to rebuild his life. He also took issue with a previous decision not to release him because the board believed he remained a danger to society....

During four hearings between 1989 and 1995, Spengler quarreled with parole board members over details of his grandmother's killing, insisting each time he'd only hit her three times on the head with a hammer while evidence pointed to 13 blows, and initially saying he couldn't explain why the attack happened....

The transcripts reveal a well-spoken man, proud to be staying out of trouble in prison and earning positions of trust and responsibility, even time out of prison with a work crew that did renovation work in places including a century-old chapel.  The board members mention Spengler testing high for intelligence and noted he came to prison with no other crimes on his record, had only dabbled in drug use and had a spotty work history, mostly as a house painter....

"So why do you think you killed her?" Spengler was asked in 1989.  "I still haven't figured that out. It was matter of just wanting to get out. She was between me and the door," he replied.

"She was just a little, bitty old lady," a board member commented.  "I realize that. That's why I still can't explain it," Spengler said.

This gun-buying back-story and the federal criminal charges facing Dawn Nguyen raise so many issues concerning not only the challenges of gun control, but ultimately sentencing purposes, policies and practices. Federal law imposes serious penalties on any felons possessing any guns — a prohibition which itself seems suspect if the Second Amendment's protection of self-defense rights is to be viewed as a serious natural/constitutional right for all persons — but this case highlights how easily even this widely accepted form of gun control can be evaded.  Sophisticated "smart gun" technology (recently discussed here and here) might help on this front by ensuring only legal/registered buyers can operate the gun, but even a "Lojack-style" gun operation technology would have difficulty prevent "neighborly friends" like Dawn Nguyen from aiding prohibited persons like William Spengler from getting access to firearms.

Speaking of Spengler and Nguyen, I continue to focus on the reality that Spengler apparently served over 17 years as a seemingly changed person in prison and was successful on parole for another decade thereafter.  It seems possible that Dawn Nguyen did not know Spengler was a convicted killer when he asked for help getting firearms; even if she did, Spengler likely convinced her that his criminal past was way in the past.  Moreover, Spengler apparently possessed the guns bought by Nguyen for him for over two years without incident (and another gun, for that matter) before Spengler snapped and turned (back?) into a homicidal evil killer.

Given that it appears Nguyen is ready to admit commiting a federal "gun control" crime, her involvement in this tragic event is now full of challenging federal sentencing issues.  I seriously doubt that Nguyen even considered the prospect of Spengler would commit a serious crime with the guns she bought for him, let alone multiple murders.  Should she still be held criminally responsible at sentencing for the horrific harms caused by the guns she bought based on a lie?  Should the many victims of Spengler's crimes get to be involved in her prosecution and eventual sentencing?  Especially if and when a plea deal is considered by the involved attorneys, is there a particular sentence or sentencing range that is obviously too lenient or too harsh for Nguyen "gun control" crime?  (Bill Otis spotlights some of these issues in this new post at Crime & Consequences titled "Should We Criminally Punish Non-Violent, Regulatory Offenses?".)

A few recent related posts:

December 29, 2012 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (76) | TrackBack

Thursday, December 20, 2012

"Empirical evidence suggests a sure fire way to dramatically lower gun homicides: repeal drug laws"

Homicides-1900-20062The title of this post is drawn from the title of this lengthy must-read post by Dan Kahan over at The Cultural Cognition Project blog. The post not only satiates my desire to have some distinct (and seemingly more productive) discussions about gun violence in the wake of the Newtown massacre than being provided by traditional media outlets, but it also makes a bunch of points that ought to be of interest to all persons on all sides of the tired-old gun-control debates. Dan's terrific post should be read in full, and I hope this taste (with some of his many links) will encourage everyone to click through to it:

I now want to point out that in fact, while the empirical evidence on the relationship between gun control and homicide is (at this time at least) utterly inconclusive, there certainly are policies out there that we have very solid evidence to believe would reduce gun-related homicides very substantially.

The one at the top of the list, in my view, is to legalize recreational drugs such as marijuana and cocaine.

The theory behind this policy prescription is that illegal markets breed competition-driven violence among suppliers by offering the prospect of monopoly profits and by denying them lawful means for enforcing commercial obligations.

The evidence is ample.  In addition to empirical studies of drug-law enforcement and crime rates, it includes the marked increase in homicide rates that attended alcohol prohibition and the subsequent, dramatic deline of it after repeal of the 18th Amendment.

Actually, it's pretty interesting to look at homicide rates over a broader historical time frame than typically is brought into view by those who opportunistically crop the picture in one way or another to support their position for or against gun control.  What you see is that there is a pretty steady historical trend toward decline in the US punctuated by expected noisy interludes but also by what appear to be some genuine, and genuinely dramatic, jumps & declines.

One of the jumps appears to have occurred with the onset of prohibition and one of the declines with repeal of prohibition. Social scientists doing their best to understand the evidence generally have concluded that that those are real shifts, and that they really were caused by prohibition and repeal.

Criminologists looking at the impact of drug prohibition can use the models developed in connection with alcohol prohibition and other modeling strategies to try to assess the impact of drug prohibition on crime.  Obviously the evidence needs to be interpreted, supports reasonable competing interpretations, and can never do more than justify provisional conclusions, ones that are necessarily subject to revision in light of new evidence, new analyses, and so forth.

But I'd say the weight of the evidence pretty convincingly shows that drug-related homicides generated as a consequence of drug prohibition are tremendously high and account for much of the difference in the homicide rates in the U.S. and those in comparable liberal market societies....

There is a very interesting empirical study, though, by economist Jeffrey Miron, who concludes that the available evidence is consistent with the hypothesis that the difference in homicide rates in the US and in other liberal market societies is attributable to our drug prohibition policies.  Gun availability in the US, according to this hypothesis, doesn't directly account for the difference in homicide rates between the US and these countries; rather, gun availability mediates the impact between drug prohibition and homicide rates in the US, because the criminogenic properties of drug prohibition create both a demand to murder competitors and a demand for guns to use for that purpose....

Repealing drug laws would do more -- much, much, much more -- than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public (I'd vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn't trade on tacit hostility toward or mere incomprehension of whatever contribution owning a gun makes to their experience of a meaningful free life); closing the "gun show" loophole; extending waiting periods etc.  Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren't otherwise interfering with liberties that we ought, in a liberal society, to respect.

Prior related posts following Newton masacre:

December 20, 2012 in Drug Offense Sentencing, Gun policy and sentencing, National and State Crime Data | Permalink | Comments (25) | TrackBack

Wednesday, December 19, 2012

"Smart Gun Technology Could Have Blocked Adam Lanza"

The title of this post is the headline of this new Huffington Post commentary by David Shuster, which I view as a long-needed and welcome example of a new kind of discourse over gun control needed in the wake of the Newtown massacre.  Here are excerpts:

As our leaders begin the uncertain political debate over gun control, there is a simple and straightforward policy solution right now that would uphold gun owners' 2nd amendment rights and still keep our kids safer.  It's called "smart gun technology."

The system is similar to "smart technology" already in use for things like cars, iPhones and security doors.  A computer microchip measures the bio-metric details of the person attempting to activate the product. If the details match the rightful owner, the device is "enabled." If the details don't match, the device will not work or open.

Smart gun technology has been around for years. CBS News profiled a New Jersey institute that was perfecting it in 2009. Science Daily had a story about the emerging technology back in 2005,

The most reliable smart gun technology involves a grip recognition system.  There are 16 digital sensor chips embedded in the handle. The computerized sensors capture the unique pattern and pressure of your grip, plus the specific size of your hand.  If someone else tries to use the gun, the information will not match the stored pattern of the gun owner's — and the weapon will not fire....

[T]his technology, as well as similar versions involving fingerprint recognition, could be embedded in guns today.  But for years, the National Rifle Association has blocked these efforts, in part because they would make guns costlier to produce and purchase.  The NRA has also insisted that smart gun technology would infringe upon the Second Amendment. Constitutional experts say that argument is absurd.  The Constitution allows for all kinds of product regulations....

The best argument against smart gun technology is a logistical one. It could prevent a homeowner who wrestles away an intruder's gun from firing it back at them. I think we can agree, however, that such MacGyver-like situations are exceedingly rare.  And the fact is, 10 to 15 percent of guns used in home invasions, robberies and mass shootings are weapons that have been stolen.

Furthermore, smart gun technology allows for multiple biometric "identities" to be stored in one gun.  This would solve a problem for police or members of the military who may want to have the option of "sharing weapons."

In the case of the Connecticut massacre, is it possible that Adam Lanza's mother, a gun enthusiast who reportedly took her sons to the range, would have embedded Adam's biometric data on her weapons if that was possible?  Sure.  But family baby sitters have told reporters that Nancy Lanza repeatedly urged "caution" around Adam and was worried about his behavioral problems....

The weapons Adam Lanza relied on were not his. They belonged to his mother, the only person entitled to use them.  And while she may have taught her son how to fire the weapons at shooting ranges over the years, she was the sole owner of the weapons, not him.  If smart technology had been in place, the weapons would have likely been useless to Adam Lanza.

And that's the point. Congress and the President should begin their new effort at preventing mass shootings by mandating something that might have made a different in Newtown, Conn. — require smart gun technology in all weapons.  Just as our nation insists on basic quality standards for cars, houses, tools, air, water, and etc, insisting on basic features for all weapons that may be "fired" is perfectly reasonable.

It's not about taking guns away.  It's about making sure that guns can't be fired by anybody but their lawful owners.  Is that too much to ask?

As long-time readers know, I have been talking up smart-gun technology on this blog for years (examples here and here), and I have been sincerely hoping that the horrific shooting in Connecticut will start generating new and needed buzz on this encouraging front. This Huff Post commentary is a good start, and I sure hope the new leadership and initiatives coming from President Obama and VP Biden (basics here from the AP) will be focused like a laser on the potential pros and cons of smart guns.

Prior posts both old and new:

December 19, 2012 in Gun policy and sentencing, Second Amendment issues, Technocorrections | Permalink | Comments (14) | TrackBack

Sunday, December 16, 2012

Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?

Like so many others, I have been struggling to come to terms with the largely incomprehensible and horrifically tragic mass murder in Connecticut on Friday.  And the struggle has not been especially aided by another round of the same old debates over the politics and practicalities of gun control and over the so-called "gun culture" in the United States.  But a helpful reader reminded me of my posts nearly five years ago here and here about the prospect of smart-gun technologies being a possible frontier for a better gun control discourse.

Because I am not well-versed on gun manufacturing or the modern devises that now control and monitor smart phones and smart cars, I still cannot readily discuss what kind of engineering might have allowed Adam Lanza's mother to buy all the guns she wanted without making it so easy for her son to murder her and so many innocent teachers and children with her guns.  But I have an inkling that most (all?) legal gun purchasers — and surely all law enforcement agencies — would love to have guns that, through some sort of advanced technological means, would become disabled if pointed toward the authorized owner and/or would not function in certain regions and/or would not fire more than a single shot without a special user code. 

Rather than go on and on as I did years ago concerning the seeming value (and failure of) advancing smart-gun technologies with the help of modern GPS tracking, I will close here by linking to my old posts on this topic and by encouraging readers to supply links to any new (or old) discussions of new gun technologies.

Prior posts from way back in February 2008:

UPDATE:  For clarity, I wanted to add that I fully recognize that smart-gun technologies would surely not eliminate all (or even most) gun crimes or harmful/illegal uses of firearms.  But I do think advanced gun technology could and should reduce misuse and harms, just as smart car and related safety technologies have reduced the number and severity of car accidents.

December 16, 2012 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (31) | TrackBack

Thursday, December 13, 2012

Does the last decade add support for "more guns, less crime" claims?

The question in the title of this post is prompted by this new USA Today story, which is headlined "Federal gun checks surge as violent crime ebbs."  Here is how the piece starts:

The number of federally required background checks of prospective gun purchasers has nearly doubled in the past decade — a time when violent crime has been in long decline in many places across the USA, according to FBI records.

The bureau's National Instant Check System (NICS) does not track actual firearms sales — multiple guns can be included in one purchase.  But the steady rise in background checks — from 8.5 million in 2002 to 16.8 million in 2012 — tracks other indicators that signal escalating gun sales.

Advocates on both sides of the gun-rights debate disagree over what is driving the trend. Gun-rights groups attribute the steady increase to the growing popularity of hunting and other gun-recreation uses, the impact of state laws allowing citizens to carry concealed handguns and concerns that the Obama administration will push for laws restricting weapons purchases.

Gun-control advocates, led by the Brady Campaign to Prevent Gun Violence, say existing gun owners are responsible for most new purchases (about 20% of gun owners possess 65% of the nation's guns, according to a 2006 Harvard study).  Brady Campaign President Dan Gross said concerns about new gun-control laws are part of a "marketing ploy" to keep firearms moving.

No gun-control legislation was passed in President Obama's first term and no major proposal was offered during the 2012 presidential election campaign.  Still, there is an "expectation" that new gun-control proposals will surface in Obama's second term, said National Rifle Association Executive Vice President Wayne LaPierre.  "People expect a siege on the Second Amendment (right to bear arms).''

Larry Keane, senior vice president of the National Shooting Sports Foundation, said gun-related recreation — from hunting to target shooting on the range — is growing, too.  From 2006 through 2011, spending on hunting equipment grew by nearly 30%, according to a national survey published in August by the U.S. Fish and Wildlife Service.

Keane said the overall firearms industry has thrived despite the sputtering economy and the decline in violent crime. "Personal safety still is a big reason people purchase firearms," Keane said.  "The economic downturn, I think, raised fears that crime would eventually go back up."

December 13, 2012 in Data on sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (10) | TrackBack

Tuesday, October 09, 2012

What do folks think of a local "violence tax" on guns and ammunition?

The question in the title of this post is prompted by this new local article out of Chicago, headlined "Cook County Considers 'Violence Tax'." Here are the interesting details:

A potential Cook County tax takes aim at guns, and gun rights activists aren't happy about it.

County president Toni Preckwinkle is considering a "violence tax" on guns and ammunition to help plug a $115 million budget gap in 2013. Under the tax, guns and ammunition would cost more, according to the Chicago Sun-Times, but Preckwinkle isn't saying how much more just yet.

The idea follows a violent Chicago summer, when some weekends left multiple people killed and dozens others injured in shootings. The city's murder rate is up 25 percent, and the Cook County Jail is near capacity with 9,000-plus inmates....

The idea raises questions about how much this would raise for the county and whether the tax would really cut down on crime.

"If we can tax cigarettes, it seems we can tax bullets and guns," said Chicago resident Cathryn Taylor. "But at the same time, I get the point that if people are buying the stuff illegally, then the tax doesn't matter because they aren't going through legal channels anyway."

The idea has come up before. Ald. Roberto Maldonado (26th) pushed for a 10-cent per-bullet tax back in 2007 when he was Cook County board commissioner. That didn't happen....

Preckwinkle's budget proposal is set to be unveiled Oct. 18, and an ammunition tax isn't the only potential money maker on the table. The board president reportedly wants to lease the top two floors of the County Building in Chicago's Loop for what she estimates could net at least $1 million a year for 10 years.

In response to this story, I cannot help but think about Chris Rock's great riff on gun control and "bullet control" in which he explains just why the world would be so much better if each bullet cost $5,000.

October 9, 2012 in Gun policy and sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (11) | TrackBack

Thursday, September 20, 2012

How often do US Attorneys "fail to exercise responsible oversight and failed to provide the leadership and judgment required of a United States attorney"?

The question in the title of this post is drawn from a quote in DOJ's inspector general's report on "Operation Fast and Furious" (highlights of which CNN has excerpted here).  Specifically, the F&F report singles out the (now resigned) US Attorney of Arizona, Dennis Burke, for his failings as quoted in the title of this post. 

A congressional hearing this morning is likely discuss this notable finding and other sharp criticisms of DOJ agents and officials in the F&F report to try to give the Obama Administration, and especially AG Eric Holder, a political black eye.  But even though often seemingly motivated more by political point-scoring than broader concerns about prosecutorial practices, I sincerely hope that the entire F&F debacle might help folks on both sides of the aisle see that federal prosecutors often can conclude that big-government, federal law enforcement ends are all too often used as a justification for utilizing very poor means by US Attorneys and their agents.

I have not followed the Fast and Furious political fights closely enough, nor do I have time to read the new 500+-page report, in order to be able to make a thoughtful assessment of whether this whole prosecutorial mess might have a potential reform silver lining.  But I hope commentors will share their take on what the new F&F report and the broader controversy should lead us to conclude about the working dynamics and mind-set of the always powerful US Department of Justice and its US Attorneys.

September 20, 2012 in Gun policy and sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, July 07, 2012

Documenting the extremes of stacked federal gun mandatory sentences

This recent Reuters article, headlined "Florida man sees 'cruel' face of U.S. justice," details an extreme (but not all that uncommon) federal sentencing story resulting from stacked mandatory gun minimums. Here is how it starts:

Quartavious Davis is still shocked by what happened to him in federal court two months ago.  "My first offense, and they gave me all this time," said Davis, a pudgy African American with dreadlocks who spoke with Reuters at the Federal Detention Center in Miami.  "Might just as well say I'm dead."

Davis was convicted of participating in a string of armed robberies in the Miami area in 2010.  His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.  But Davis was not convicted of hurting anyone physically, including the dog.

Davis would occupy no place at all in the annals of crime if not for his sentence.  Now 20 years old, he was sentenced to 1,941 months -- almost 162 years -- in prison without the possibility of parole.

On the day of Davis's interview with Reuters, the U.S. Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted "cruel and unusual punishment" even in cases of murder.  Unfortunately for Davis, he was 18 at the time of his crimes.

Nonetheless, Davis's attorney will argue that Davis's sentence to die in prison also constitutes "cruel and unusual punishment" on the grounds that Davis is a "first offender," having never before been charged with a crime.

"Just as the Supreme Court recently held that the Constitution bars taking away all discretion from judges in sentencing juveniles to life imprisonment for committing murder," said the attorney, Jacqueline Shapiro, "so also is it cruel and extreme to allow unfettered prosecutorial discretion to force a sentencing judge to impose a life sentence on a teenage first offender convicted of lesser charges."

Davis's unusually long sentence results from a controversial practice known as "stacking," in which each count of an indictment is counted as a separate crime, thus transforming a first-time defendant into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

"Any law that provides for a mandatory term of imprisonment for a 19-year-old first offender that exceeds a century has got to be unconstitutional," said Michael Zelman, the court-appointed attorney who represented Davis at his trial.  Zelman resigned from Davis's case after filing a notice of appeal.  If Davis's new lawyer, Shapiro, has her way, the Supreme Court may ultimately decide the issue.  The case will be appealed first to the Eleventh Circuit Court of Appeals in Atlanta.

Until then, Davis's story will be a prominent case in point for both sides in an increasingly heated debate, pitting those who would protect society from the prospective dangers posed by serial criminals against those who see the United States -- whose overcrowded prisons house fully one-quarter of all the prisoners in the world, most of them black -- as a bastion of injustice.

July 7, 2012 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (38) | TrackBack

Thursday, June 28, 2012

"Agent who started ‘Fast and Furious’ defends gunrunning operation"

The inter-branch sparring in the long-running brouhaha over the "Fast and Furious" gun operation has always seemed much more a political story than a criminal justice one.  Still, the enduring controversy surely has had significant federal criminal justice implications, at least by severly impacting relationship(s) between current members of Congress and the current Justice Department.  As the full House of Representative considers a vote to hold Attorney General Eric Holder in contempt based on a failure to provide full information about discussions of the operation, I wondered if reader have views concerning any potential (good or bad) long-term criminal justice implications of this scandal.  This Washington Post article, which shares the headline of this post, seems like a good prompt for urging F&F discussion to be more focused on criminal justice issues that political one.  Here is how the WaPo piece starts:

The “Fast and Furious” gun-tracking operation has been widely condemned by Republicans, Democrats and even top officials at the Justice Department as a failed sting. The case has led to the ouster of the U.S. attorney in Phoenix, President Obama’s first use of executive privilege and a probable vote of contempt Thursday against the attorney general.

But in the eyes of the man who started and oversaw Fast and ­Furious, the operation remains an example of smart law enforcement — an approach that has simply been misunderstood. “It was the only way to dismantle an entire firearms-trafficking ring and stop the thousands of guns flowing to Mexico,” said William D. Newell, a veteran federal agent who spent five years as the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives in Phoenix.

In his first public interview about the operation, Newell said he believed that he and his agents were working the largest gun-trafficking case of their careers and finally had a window into Mexico’s powerful Sinaloa cartel.  To identify cartel members, ATF agents, beginning in 2009, watched as about 2,000 weapons purchased at Phoenix gun stores hit the streets; their goal was to trace them to the cartel.

But on Dec. 14, 2010, Operation Fast and Furious came crashing down. A Border Patrol agent was killed in the Arizona desert, and two AK-47s found at the scene were linked to Newell’s sting.  Agents working under him, enraged, went to lawmakers about the operation, sparking an 18-month investigation led by Rep. Darrell Issa (R-Calif.), who called Fast and Furious “felony stupid.”

Ever the optimist, I am hopeful the long-term impact of the F&F controversy will be a greater disinclination by federal (and state?) officials and prosecutors to imagine and engineer criminal justice stings that might end up looking "felony stupid."  But I fear that I may just be looking too hard for a silver lining in this otherwise dark criminal justice cloud.

Related post:

June 28, 2012 in Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, 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 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack

Tuesday, April 24, 2012

Very different case provides a very different (sentencing) perspective on Florida gun laws

This new CNN article, headlined "Stand your ground law under scrutiny in domestic violence case," provides a very different view of Florida's criminal justice system and gun laws than comes via the Matin-Zimmerman case. Here are excerpts from the piece:

Marissa Alexander, a 31-year-old mother of three, pleaded for her freedom as an inmate in the Duval County Jail in Jacksonville, Florida. "This is my life I'm fighting for," she said while wiping away tears. She added, "If you do everything to get on the right side of the law, and it is a law that does not apply to you, where do you go from there?"

Alexander is referring to Florida's so-called stand your ground law, a law that has come under scrutiny since the killing of Trayvon Martin. Unlike the Martin case, which involved one stranger killing another, Alexander's case involved her gun and her abusive husband.

On August 1, 2010, she said her husband, Rico Gray, read text messages on her phone that she had written to her ex-husband. She said Gray became enraged and accused her of being unfaithful. "That's when he strangled me. He put his hands around my neck," Alexander said.

She managed to escape his grip but instead of running out the front door of their home, she ran into the garage, she said, to get into her truck and drive away. Alexander said that in the confusion of the fight, she forgot to get her keys and the garage door wouldn't open, so she made a fateful decision. "I knew I had to protect myself," she said, adding, "I could not fight him. He was 100 pounds more than me. I grabbed my weapon at that point."

She went back inside the house and when Gray saw her pistol at her side, she said he threatened to kill her, so she raised the gun and fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do. That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."

Alexander, however, said she did not aim the gun at her husband.  She said she fired into the air intending to scare him away and Gray quickly left the house with his two children. No one was hurt in the incident, but Alexander sits in jail facing a 20-year sentence on three charges of aggravated assault with a deadly weapon....

Alexander's attorney filed a motion for dismissal under the stand your ground law but at that proceeding her husband changed his story.  Gray said he lied during his deposition after conspiring with his wife in an effort to protect her.  At the hearing, he denied threatening to kill his wife, adding, "I begged and pleaded for my life when she had the gun." The motion was denied by the judge.

Alexander was offered a plea deal..., but she opted to go to trial. A jury found Alexander guilty in 12 minutes. She is baffled why invoking the stand your ground law wasn't successful in her case. "Other defendants have used it. What's so different about my situation that it doesn't apply to me?" she asked.

The local NAACP believes race may have played a role."There's a double standard with stand your ground," said Isaiah Rumlin, president of the Jacksonville Chapter of the NAACP. "The law is applied differently between African-Americans and whites who are involved in these types of cases," he added. Rumlin cited two shooting cases in Florida with white shooters: One was had a successful stand your ground defense and the other has yet to be charged with a crime....

Through a spokeswoman, State Attorney Angela Corey declined to comment on the case until after the sentencing. Alexander's attorney, Kevin M. Cobbin, is fighting for a new trial and that hearing is tentatively scheduled for next week. If that motion is denied, Alexander will receive a mandatory 20-year sentence with no possibility of parole.

In part because this case is garnering new media attention, the folks at Families Against Mandatory Minimums have released this notable new press release to spotlight the broader sentencing concern these kinds of cases implicate.  Here is how the press release begins:

FAMM President Julie Stewart today called on Florida lawmakers to repeal the state’s “10-20-Life” automatic prison sentence for assault with a deadly weapon without intent to kill. The call comes as Marissa Alexander, a 31-year-old mother of three, prepares to be sentenced for a 2010 incident in which she fired a gun into the ceiling of her house to persuade her abusive husband to leave.

“A lot of attention has been paid to Florida’s ‘Stand Your Ground’ law and far too little to the state’s extreme, one-size-fits-all sentencing laws,” Ms. Stewart said.  “Less than three years ago, Orville Lee Wollard, a lawful gun owner, fired a warning shot in his home to chase off a young man who had been abusing his teenage daughter.  After Wollard rejected a plea deal and a jury rejected Wollard’s self-defense claim, a Florida judge was forced by the state’s mandatory minimum sentencing law for assault to send Wollard to prison for 20 years.  Mr. Wollard’s judge stated that he thought the sentence was excessive, but said his hands were tied.

“In the coming weeks, Marissa Alexander, who was also found guilty of assault with a deadly weapon, will likely be sentenced to the same 20-year mandatory minimum prison term. While reasonable people can disagree on whether Mr. Wollard or Ms. Alexander deserve any prison time for their conduct, no one can honestly believe that these were the types of cases the legislature had in mind when it passed the 10-20-Life automatic gun sentence,” Stewart said.

April 24, 2012 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Friday, February 24, 2012

"Second Amendment Penumbras: Some Preliminary Observations"

The title of this post is the title of this new short paper by Glenn Harlan Reynolds, which is now available via SSRN and has this on-sentence abstract: "With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights in general of an enforceable right to arms."

A quick review of the draft leads me to conclude that Professor Reynolds sees, as do I, how the Second Amendment could now have a potentially profound impact on the application of some criminal gun laws. Consider, for example, this interesting passage from the article:

First Amendment analogies, in fact, suggest another doctrine that might apply: chilling effect.  Traditionally, violation of gun laws was treated as mere malum prohibitum, and penalties for violations were generally light.  During our nation’s interlude of hostility toward guns in the latter half of the twentieth century, penalties for violations of gun laws, especially in states with generally anti-gun philosophies, became much stiffer.  Gun ownership was treated as a suspect (or perhaps “deviant” is a better word) act — one to be engaged in, if at all, at the actor’s peril.

But with gun ownership now recognized as an important constitutional right belonging to all Americans, that deviant characterization cannot be correct.  Regulation of firearms cannot now justifiably proceed on an in terrorem approach, in which the underlying goal is to discourage people from having anything to do with firearms at all.  Laws treating fairly minor or technical violations as felonies must be regarded with the same sort of suspicion as pre–New York Times v. Sullivan laws on criminal libel: as improper burdens on the exercise of a constitutional right.

February 24, 2012 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Monday, January 23, 2012

Doesn't Heller and McDonald impact old precedents concerning federal FIP crimes?

The question in the title of this post is prompted an interesting (and I think incorrect) ruling today by a Tenth Circuit panel in US v. Games-Perez, No. 11-1011 (10th Cir. Jan. 23, 2012) (available here).  The issue and basics of the ruling are explained in the majority opinions's first paragraph:  

Defendant and appellant Miguel Games-Perez was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).  Claiming that he was unaware that he was actually a felon, Mr. Games-Perez filed a motion inlimine, seeking a pre-trial ruling that the government was required to prove that he actually knew he was a felon.   When that motion was denied, Mr. Games-Perez filed a motion to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2), asking to reserve the right to appeal the district court’s denial of his motion in limine. The district court granted Mr. Games-Perez’s motion, pursuant to which he entered a conditional guilty plea. The district court sentenced him to fiftyseven months’ imprisonment, followed by three years of supervised release. Mr. Games-Perez appeals his sentence, which we affirm.

The majority opinion affirms the ruling that the defendant need not know he was a felon in order to be guilty of the federal crime of "felon-in-possission" of a firearm by reaffirming a 1996 ruling of the circuit that no mens rea is required as to the "is a felon" element of this federal crime.  Whether that was a sound ruling in 1996 is debatable, but it strikes me that it is a constitutionally problematic ruling in the wake of the SCOTUS Second Amendment rulings in Heller and McDonald that certain persons have a constitutional right to possess a firearm in certain circumstances.

Notably, in a separate lengthy concurrence, Judge Gorsuch assails the soundness of the 1996 precedent stressed by the majority with reference to the Second Amendment:

Following the statutory text would simply require the government to prove that the defendant knew of his prior felony conviction. And there’s nothing particularly strange about that. After all, there is “a long tradition of widespread lawful gun ownership by private individuals in this country,” and the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly. Staples v. United States, 511 U.S. 600, 610 (1994); District of Columbia v. Heller, 554 U.S. 570 (2008). At the same time, of course, the Court has expressly indicated that laws dispossessing felons are consistent with the Constitution. Heller, 554 U.S. at 626; but see United States v. McCane, 573 F.3d 1037, 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (questioning the Court’s analysis on this score). And given all this, it is hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct.

But, despite this astute analysis, Judge Gorsuch feel compelled to follow the circuit's 1996 precedent rather than to conclude (as his own reasoning suggests) that Heller and McDonald makes this old precedent constitutionally suspect.  Curious -- and worrisome for anyone seriously committed to gun right and/or concerned about broad application of vague laws limiting gun possession.

January 23, 2012 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (13) | TrackBack

Wednesday, January 04, 2012

Fourth Circuit suggests people must be "responsible" to get full Second Amendment protection

The Fourth Circuit has an interesting and notable Second Amendment ruling today in US v. Chapman, No. No. 10-5071 (4th Cir. Jan. 4, 2012) (available here). Here is how the opinion begins, the passage that prompts the title of this post, and the ends of the opinion:

Section 922(g)(8) of Title 18 of the United States Code prohibits a person who is subject to a domestic violence protective order issued under certain specified circumstances from, inter alia, possessing a firearm or ammunition in or affecting interstate commerce. 18 U.S.C. § 922(g)(8). The sole issue raised on appeal by Ronald Chapman (Chapman) is whether his conviction on one count of violating § 922(g)(8) survives his as-applied constitutional challenge under the Second Amendment, U.S. Const. amend. II.  For reasons that follow, we affirm the judgment of the district court [which rejected the defendant's Second Amendment claim]....

Chapman’s claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense. Assuming arguendo that Chapman was a law-abiding citizen at the time he possessed the six firearms and 991 cartridges of ammunition set forth in the indictment, he was, without a doubt, not a responsible citizen by virtue of: (1) a judicial finding that he likely committed domestic abuse; (2) his engaging in behavior causing him to be judicially prohibited for 180 days from using, attempting to use, or threatening to use physical force against his intimate partner that would reasonably be expected to cause bodily injury; (3) his serious attempts at suicide using firearms in the very home in which he claims to have possessed such firearms for self-defense and his endangering the life of his ex-wife in the process; and (4) his discharge of a firearm out of the bedroom window in the direction of his ex-wife.   Accordingly, we conclude that intermediate scrutiny is the appropriate standard of scrutiny for Chapman and similarly situated persons....

We also recognize that the prohibitory net cast by § 922(g)(8)(A)-(B) and (C)(ii) may be somewhat overinclusive given that not every person who falls within in it would misuse a firearm against his own child, an intimate partner, or a child of such intimate partner, if permitted to possess one. This point does not undermine the constitutionality of § 922(g)(8)(A)-(B) and (C)(ii), however, because it merely suggests that the fit is not a perfect one; a reasonable fit is all that is required under intermediate scrutiny....

For the reasons stated, we hold that § 922(g)(8)(A)-(B) and (C)(ii), as applied to Chapman, satisfies the intermediate scrutiny standard in analyzing his Second Amendment challenge to such statute. We, therefore, affirm the judgment of the district court.

This ruling just further confirms my view that the Second Amendment right to keep and bear arms is a quirky one among those rights expressly recognized in Bill of Rights.  I doubt that a court would hold that someone could, simply by virtue of being subject to a domestic violence protective order, be subject to federal criminal prosecution for, say, just going to church or writing a book or exercising other First Amendment rights.  Perhaps more worrisome for those who care about gun rights, I wonder if and when folks deeply committed to gun control might claim that persons who are, say, unwilling to register their guns with the authorities are not responsible citizens entitled to full Second Amendment protection.

January 4, 2012 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (17) | TrackBack

Thursday, December 15, 2011

Stacked 924(c) counts leads to another very long federal mandatory minimum sentence from Utah

This new piece from The Salt Lake Tribune, headlined "Reluctant Utah judge orders man to 57 years in prison for gang robberies," reports on another case involving stack gun mandatory minimums producing an extremely long federal mandatory minimum sentence. Here are the basics:

Kepa Maumau stared at the courtroom ceiling, fighting to keep his compsure as his father sobbed while giving the 24-year-old man a bear hug on Thursday. It would be the last chance for father and son to embrace after U.S. District Court Judge Tena Campbell ordered Maumau, a once promising running back with plans to play football at Weber State University, to spend 57 years in prison for committing three armed robberies on behalf of the Tongan Crip Gang.

A reluctant Campbell handed down the sentence, which is dictated by federal mandatory minimum guidelines associated with gun crimes.

Maumau’s sentencing in federal court was fourth completed for six members of TCG convicted by a jury in October for a variety of crimes dating back to 2002. The jury convicted Maumau of racketeering conspiracy, robbery, assault with a dangerous weapon and multiple counts of using or carrying a firearm during a violent crime.

Although Maumau’s federal charges marked the first time he’d ever been charged with a felony as an adult, he is subject to a mandatory 57 years for repeatedly using a gun during the robberies.Maumau’s defense attorney, Rebecca Skordas, said she plans to appeal the sentence and used the hearing as a chance to speak out against mandatory minimum sentences.

"This is absurd. It’s just not right," Skordas said. "We as a society have failed when we send a young man to prison for 57 years."

Campbell said the law gives her no alternatives in Maumau’s case. "I can’t change it," she said matter-of-factly.

This case may remind hard-core sentencing fans of another notable federal sentencing case from the same district, which the article goes on to discuss:

Kepa Maumau’s case isn’t the first where a mandatory minimums have come under fire. Earlier this year, the U.S. Supreme Court declined to hear the case of Utah music producer Weldon Angelos, who wanted the high court to throw out the 55-year prison sentence he received for drug and weapons crimes despite having no prior criminal record.  The decision ended appeal options for Angelos, 32 -- the founder of hip-hop label Extravagant Records -- who had unsuccessfully argued that his trial attorney mishandled plea negotiations during his court proceedings and that the sentence handed down was unfair.

Angelos sold marijuana to a police informant three times in May and June 2002, each time charging $350 for 8 ounces. He was indicted in federal court on one gun possession count, three counts of marijuana distribution and two lesser charges....

U.S. District Judge Paul Cassell sentenced Angelos to a minimum mandatory 55-year sentence: five years on the first weapons conviction and 25 years each for the next two counts, as required by law. Cassell, frustrated that his hands were tied by the mandatory guidelines, asked former President George Bush to commute the sentence, calling it "unjust, cruel and irrational."

Because I represented Weldon Angelos throughout his unsuccessful 2255 proceedings, I will not comment further on this matter except to note that I am not certain that Angelos is wholly without any more appeal options.

December 15, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Tuesday, November 29, 2011

Noting some notable denials of cert by SCOTUS on gun rights and CP restitution

As regular readers know, I was giddy yesterday concerning two cert grants by the Supreme Court on sentencing issues (background here): the Justices took up Apprendi's applicability to fines in Southern Union (basics here) and the application of the Fair Sentencing Act in two "pipeline" crack cases (basics here).  However, as well reported in a pair of articles by Warren Richey of the Christian Science Monitor, the Justices denied cert on a couple of notable criminal justices issues as well:

Given that the current SCOTUS Term is already chock full of hot-button issues, I am not very surprised nor very troubled that the Justices decided not to take up new gun and kiddie porn cases.  Still, on both fronts, the only real question seems to be when and how, not whether, these matters will garner Supreme Court review.

November 29, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 14, 2011

Might restoration of felon gun rights actually reduce recidivism?

As first blogged here, today's New York Times has a lengthy front-page article on state restoration of gun rights to former felons.  The piece is (misleadingly?) headlined "Felons Finding It Easy to Get Gun Rights Reinstated," and the suggestion throughout the article is that the public should be very concerned and quite fearful that some states now make it too easy for some felons to get their gun rights restored after having completed their sentence.  But, because recidivism rates for many offenders are often very high, some of the statistics appearing in the Times piece led me to wonder whether resoration of felon gun rights might actually reduce recidivism and enhance public safety.

The Times article rightly noted that sound data on these matters are had to assemble and assess, but the Times was able to run some notable numbers for Washington state.  Here is some of what the Times found and reported:

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

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

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

So the Times here reports a 13% recidvism rate for Washington state offenders with restored gun rights, but apparenently the recidivism rate is this high only due to counting of minor (i.e., misdemeanor) crimes.  As I understand these numbers, the Times found that only about 200 of the 3,300 prior offenders with restored gun rights since 1995 went on to commit a felony — roughly a 6% felony recidivism rate — and only 70 went on to commit Class A of B felonies — roughly a 2% serious felony recidivism rate.  That strikes me as an impressively low felony and serious felony recidivism rate for these offenders, especially given that states often report that half or more persons with a felony record end up committing a future offense.

Seeking general recidivism data for comparison purposes, I found this April 2008 report from the Washington State Sentencing Guidelines Commission, titled "Recidivism of Adult Felons, 2007," which reports that in Washington state the "overall rate of recidivism for men was 65.9% compared to 53.6% among women."  (I think it is fair to assume that the majority of felons seeking restoration of gun rights are men.)  Based on this data, is it fair to suggest that offenders with restored gun rights in Washington state are roughly than five times less likely to recidivate that other offenders?  (I also found this January 2011 report from the Washington State Institute for Public Policy which reports that "recidivism rates have declined" in Washington in the period from 1990 to 2006 and that "the largest reductions have been for higher risk offenders.")

This comparative data would seem to at least support a plausible working hypothesis that restoring gun rights to felons might actually reduce recidivism and enhance public safety.  Of course, there is a huge apples/oranges problem in trying to compare these recidivism rates.  I certainly hope and expect that Washington aspires to restore gun rights to former felons who appear to pose the least risk to public safety, and thus we should hope and expect recidivism rates to be generally lower for these folks than for others with a felony record.  Still, given that recidivism rates are appear to be so much lower for those who get their gun rights restored, there is a reasonable basis for at least speculating that the process and grant of restoration of rights works to provide additional encouragement for these former felons to stay crime-free in the future.

Some related Second Amendment and gun policy posts:

November 14, 2011 in Data on sentencing, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (23) | TrackBack

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


November 14, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, November 03, 2011

"The Right Not to Keep or Bear Arms"

The title of this post is the title of this terrifically-interesting new paper on SSRN by Professor Joseph Blocher.  Here is the abstract:

Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak.  This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have.

The Article concludes -- albeit with some important qualifications -- that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home.  Recognizing such a right might call into question the constitutionality of the growing number of “antigun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.

November 3, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13) | TrackBack

Wednesday, October 26, 2011

"Record-Low 26% in U.S. Favor Handgun Ban"

N9ggmdee1k60atawqdbprqThe title of this post comes from the headline of this new Gallup report, which includes this explanation of the latest poll data on gun control sentiments:

A record-low 26% of Americans favor a legal ban on the possession of handguns in the United States other than by police and other authorized people. When Gallup first asked Americans this question in 1959, 60% favored banning handguns. But since 1975, the majority of Americans have opposed such a measure, with opposition around 70% in recent years.

The results are based on Gallup's annual Crime poll, conducted Oct. 6-9. This year's poll finds support for a variety of gun-control measures at historical lows, including the ban on handguns, which is Gallup's longest continuing gun-control trend.

For the first time, Gallup finds greater opposition to than support for a ban on semiautomatic guns or assault rifles, 53% to 43%. In the initial asking of this question in 1996, the numbers were nearly reversed, with 57% for and 42% against an assault rifle ban. Congress passed such a ban in 1994, but the law expired when Congress did not act to renew it in 2004. Around the time the law expired, Americans were about evenly divided in their views.

Additionally, support for the broader concept of making gun laws "more strict" is at its lowest by one percentage point (43%). Forty-four percent prefer that gun laws be kept as they are now, while 11% favor less strict laws. As recently as 2007, a majority of Americans still favored stricter laws, which had been the dominant view since Gallup first asked the question in 1990.

Americans' preference regarding gun laws is generally that the government enforce existing laws more strictly and not pass new laws (60%) rather than pass new gun laws in addition to stricter enforcement of existing laws (35%). That has been the public's view since Gallup first asked the question in 2000; the 60% this year who want stricter enforcement but no new laws is tied for the high in the trend.

All key subgroups show less support for stricter gun laws, and for a ban on handguns, than they did 20 years ago. In 1991, 68% of Americans favored stricter gun laws and 43% favored a ban on handguns. Those percentages are 43% and 26%, respectively, today.

Relatively few key subgroups favor stricter gun-control laws today, whereas in 1991, all did. Since then, Democrats' views have shown less change, with a 10-point decline in the percentage favoring stricter laws. Republicans show a much larger decline of 35 points. In addition to Democrats, majorities of Eastern residents and those without guns in their household still favor stricter gun laws....

Americans have shifted to a more pro-gun view on gun laws, particularly in recent years, with record-low support for a ban on handguns, an assault rifle ban, and stricter gun laws in general. This is the case even as high-profile incidents of gun violence continue in the United States, such as the January shootings at a meeting for U.S. Rep. Gabrielle Giffords in Arizona.

The reasons for the shift do not appear related to reactions to the crime situation, as Gallup's Crime poll shows no major shifts in the trends in Americans' perceptions of crime, fear of crime, or reports of being victimized by crime in recent years. Nor does it appear to be tied to an increase in gun ownership, which has been around 40% since 2000, though it is a slightly higher 45% in this year's update. The 2011 updates on these trends will appear on in the coming days.

Perhaps the trends are a reflection of the American public's acceptance of guns. In 2008, Gallup found widespread agreement with the idea that the Second Amendment of the U.S. Constitution guarantees the right of Americans to own guns. Americans may also be moving toward more libertarian views in some areas, one example of which is greater support for legalizing marijuana use. Diminished support for gun-control laws may also be tied to the lack of major gun-control legislation efforts in Congress in recent years.

October 26, 2011 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, October 04, 2011

Split DC Circuit panel issues important Second Amendment ruling in via Heller II

The DC Circuit has another big Second Amendment ruling in the Heller case today in Heller v. DC, No. No. 10-703 (DC Cir. Oct. 4, 2011) (available here).   Here is how the majority opinion (per Judge Ginsburg) gets started: 

In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one’s home violated the Second Amendment right of individuals to keep and bear arms.   See District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85.  The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District’s gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of “assault weapons” and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District’s congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment.

The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements.   We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

Here is part of the start of the very lengthy dissent by Judge Kavanaugh:

In this case, we are called upon to assess those provisions of D.C.’s law under Heller.  In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia.  In part for that reason, Heller has engendered substantial controversy.  See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253 (2009); Richard A. Posner, In Defense of Looseness, THE NEW REPUBLIC, Aug. 27, 2008, at 32.  As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction.  Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.

In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.

October 4, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

"Montana objects to federal gun ban for medical marijuana users"

The title of this post is the headline of this local Montana article, which begins and ends this way:

Attorney General Steve Bullock voiced his objection Monday to the U.S. Justice Department over its recent memo banning the sale of guns or ammunition to licensed medical marijuana users and urged the agency not to prosecute anyone for now.

Bullock wrote U.S. Attorney General Eric Holder about the Sept. 21 memo from the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives to licensed gun dealers. The memo said it is illegal for medical marijuana cardholders to buy guns and ammunition, and illegal for dealers to sell these products to them.

The letter from Bullock followed criticism of the policy last week from all three members of Montana's congressional delegation, Sens. Jon Tester and Max Baucus, and Rep. Denny Rehberg. A firearms advocacy group and a medical marijuana group had earlier blasted the memo....

Bullock said the federal letter raises Second and Fifth amendment constitutional issues over the right to bear arms, equal protection and due process. In addition, he said, hunting is a constitutionally protected activity in Montana.

The Montana attorney general said he certainly recognizes the supremacy clause in the U.S. Constitution and the importance of maintaining a federal union, but added: "In our federal system of dual sovereignty, I respectfully suggest that the federal government should act in a careful manner when its laws and policies involve conflicts with those of the state."

Bullock conceded there had been abuses and problems with medical marijuana laws in various states, including Montana, but these states have sought to find workable solutions. "In doing so, however, we also face issues that are, candidly, created or exacerbated by federal actions and policies that do not always reflect the kind of careful approach and appropriate accommodation that should be accorded the state," said Bullock, a Democrat running for governor in 2012.

Medical marijuana industry officials have said that changing federal policies on the issue have created problems. Federal authorities raided more than two dozen Montana medical marijuana growing and dispensing operations earlier this year as the Legislature was considering medical marijuana bills.

Gary Marbut, president of the Montana Shooting Sports Association, called Bullock's letter to Holder "a good first step." He said he looks forward to seeing "actual deeds" by state elected officials in following up on the issue.

A few related posts: 

October 4, 2011 in Drug Offense Sentencing, Gun policy and sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 02, 2011

Notable Ohio headlines on many modern crime and punishment fronts

A number of recent articles in my local Columbus Dispatch spotlight a number of modern issues of crime and punishment playing out in the bellwether Buckeye state.  Here are headlines and links:

UPDATE: Here is one more new story of note from Monday's Dispatch: "Crack convicts’ prison time cut; New federal guidelines might affect hundreds"

October 2, 2011 in Death Penalty Reforms, Gun policy and sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, September 29, 2011

What do Second Amendment and states' rights fans think about feds latest gun memo?

As detailed in this new AP piece, which is headlined "ATF: Illegal to sell guns to med marijuana users," a new memo/letter from the feds restates the US Justice Department's view that gun dealers violate federal law if and when they sell a firearm to anyone who uses medical marijuana consistent with state law.  Here are excerpts from the AP report:

Federal law already makes it illegal for someone to possess a gun if he or she is "an unlawful user of, or addicted to" marijuana or other controlled substances. A Sept. 21 letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, issued in response to numerous inquiries from gun dealers, clarifies that medical marijuana patients are included in that definition....

"There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law," said the letter by Arthur Herbert [available here], the ATF's assistant director for enforcement programs and services....

The clash between state and federal drug laws has led to lawsuits and criminal cases in some of the 16 states that have legalized medical marijuana use. Officials in two Oregon counties have said they'll appeal to the U.S. Supreme Court after state judges said sheriffs couldn't deny concealed handgun licenses for medical marijuana patients.

The Oregon Court of Appeals and the Oregon Supreme Court said the state law that authorizes concealed handgun permits is separate from the federal law that outlaws gun possession by drug users, and the state gun law doesn't address medical marijuana use.

Federal authorities also raided dozens of medical marijuana operations across Montana this spring, chilling a once-booming pot industry and leading to sweeping changes in Montana law. The Department of Justice followed up with a warning letter to political leaders in many states that federal prosecutors will pursue marijuana distributors but not individual patients who are following state law....

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

Besides that, the government is putting an additional burden on gun dealers to police their customers, said Montana Shooting Sports Association Gary Marbut. "Their business is to be merchants, not to be cops. Unfortunately, the federal licensing scheme complicates that," Marbut said. "It sounds as if the (ATF) is expecting them to drift further into the cop role."

I would be very interested to hear what various Republican candidates for president would have to say on this issue, especially Rick Perry and Michele Bachmann given their vocal support for the Second Amendment and for states' rights.

A few related posts:

September 29, 2011 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, September 24, 2011

"Should pardoned felons have gun rights?"

41591_37644432732_5613370_n The title of this post is the headline of this front-page article from yesterday's edition of The Tennessean.  Here is how the piece starts:

David Scott Blackwell has repaid his debt to society, by Georgia standards.  He served five years in prison for selling drugs.  He successfully finished his probation.  He was even granted a full pardon by the Georgia Board of Pardons and Paroles, which would allow him to possess a gun in that state.

But should Blackwell, now living in Franklin, be able to own a gun here? Blackwell is suing the state after being denied a gun permit in Tennessee, arguing that the Georgia pardon fully restored his rights — even the right to bear arms.  It’s a battle being played out in other states as well, as lawmakers in places such as Alaska and Oregon have mulled over laws to loosen firearms restrictions on felons who have had some of their rights restored.

It also has brought out unusually vocal support from Second Amendment advocates, who in prior years have been hesitant to support some felons’ rights to possess firearms.  Among those advocates is the Tennessee Firearms Association, which downplays the fact that Blackwell is a convicted felon, instead painting it as a conflict between the constitutional powers of the pardon and Tennessee lawmakers who have written laws to restrict felons’ rights.

This marks the first time in the association’s 16 years that it has filed a brief in any lawsuit.  “Georgia’s pardon system granted him a full pardon, and it specifically says he has the right to purchase and acquire guns,” said John Harris, a Nashville attorney who serves as the volunteer executive director for the Tennessee Firearms Association.  “This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?”

Blackwell failed to convince a Davidson County Chancery Court judge, but has appealed. The Tennessee Court of Appeals recently heard arguments and is considering the case. “The pardon restores constitutional rights — that’s what a pardon does,” said Blackwell’s attorney, David Raybin.  “Therefore, it restores his right to a firearm.  That’s it, in its simplest terms.”

But the state is opposing Blackwell, saying laws passed by the Tennessee legislature prohibiting felons from possessing firearms apply to those whose rights have been restored.  “It is reasonable for the legislature to determine that felony drug offenders, even those who subsequently receive a pardon, are likely to misuse firearms in the future,” wrote the Tennessee Attorney General’s Office.  “This is due to the well-known connection between guns and drugs.”

The newspaper has this accompanying on-line poll asking whether "a pardoned ex-convict who is allowed to own fire arms in Georgia [and] now lives in TN [should] be allowed to own a gun in TN?".   With just under 500 votes cast as of this writing, the vote has YES at 47%, NO at 45%, and a remaining 8% as Undecided.   (I voted YES in part because I suspect a non-violent offender who has secured a pardon is probably less dangerous and less likely to misuse a gun than an average citizen.)

September 24, 2011 in Clemency and Pardons, Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (26) | TrackBack

Tuesday, September 20, 2011

Ninth Circuit rejects Second Amendment attack on criminalizing drug addict gun possession

In US v. Dugan, No. 08-10579 (9th Cir. Sept. 20, 2011) (available here), a Ninth Circuit panel needs only two pages to reject a federal defendant's Second Amendment challenge to a federal statute that makes it a felony for a drug addict to possess a firearm.  Here are excerpts from the brief opinion (with a bit of my emphasis added toward the end):

We consider the constitutionality of 18 U.S.C. § 922(g)(3) ... [and] uphold the statute against this Second Amendment challenge.

Defendant Kevin Dugan illegally grew and sold marijuana.  He also smoked marijuana regularly.  When police officers responded to a report of domestic violence at his home one afternoon, they discovered his marijuana operation and arrested Defendant.  Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of § 922(g)(3).

Defendant argues that § 922(g)(3) runs afoul of the Second Amendment because it deprives him of his constitutional right to possess and carry weapons in case of confrontation....  [But the Supreme] Court told us that “nothing in [its Heller] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Two of our sister circuits have taken that statement to mean that § 922(g)(3), which embodies a longstanding prohibition of conduct similar to the examples mentioned in Heller, permissibly limits the individual right to possess weapons provided by the Second Amendment.  United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), cert. denied, 131 S. Ct. 1027 (2011).  We agree.

Like our sister circuits, we see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so.  Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.  Moreover, unlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse.  The restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill.  Yancey, 621 F.3d at 686-87.  Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.

I find the logic of this opinion quite suspect, though I fear the usual Second Amendment crowd will not be eager to assail the Ninth Circuit panel's ruling here.  Moreover, I cannot not help but notice that, in the second sentence of the last paragraph, the Ninth Circuit panel jumps from talking about felons to referencing "career criminals" (I have added the emphasis here).  Indeed, the very use of this legally irrelevant and inflamatory term is one of many reasons I find the logic of this opinion suspect.

Obviously, not all felons are "career criminals."  More to the point, perhaps, I find intriguing not only the notion that all criminals and mentally ill and habitual drug users are those "more likely [to] have difficulty exercising self-control," but also the suggestion that all those who are "more likely [to] have difficulty exercising self-control" can, consistent with Second Amendment, be subject to severe criminal punishment for merely possessing a gun for personal self-defense in the home.

Logic aside, this panel opinion is on solid ground when it notes that all persons who have committed any felony (including Martha Stewart and Scooter Libby any many others without any history of violence) are forever subject to stiff federal criminal penalties under current law for possessing a gun even in their homes for self-defense.  Whether that law and others of a similar ilk are so clearly free from serious Second Amendment scrutiny based on Heller's dicta is a question I will continue to raise in this space in response to opinions like the panel work today in Dugan.

September 20, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13) | TrackBack

Tuesday, July 12, 2011

Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

The provocative (but still serious) question in the title of this post is inspired by this recent post on Second Amendment jurisprudence and this new ABC News report headlined "Casey Anthony Cops May Provide Her Protection When She Leaves Jail."  Consider first the start of the news report:

The police who investigated Casey Anthony for murder -- and still believe she is guilty -- said today that they are assessing the threat to her safety and may provide police protection for Anthony when she leaves jail this weekend.

Orange County Sheriff Jerry Demings acknowledged the anger over the verdict that found Anthony not guilty of killing her 2-year-old daughter Caylee. The fury has been directed at Anthony, her parents, the judge and the jury.  "Our intelligence section is assessing the threats," said Sgt. John Allen, who helped interrogate Anthony at Universal Studios after she admitted she had lied about working there.

"A lot of people have strong sentiments about the outcome, but no one has the right to take the law into their own hands.... I would hope people step back and, regardless of their feelings, not commit another crime," Allen said at a news conference with other members of the team that investigated Anthony.

Demings said that when Anthony, 25, leaves jail Sunday, "We will assist in her departure from those premises."  If there is an "overriding public safety need," they will escort her to her destination, the sheriff said.  He added, however, "We will not be providing any elaborate protection for Casey once she leaves."

The jury's not guilty verdict has not changed the opinion of the cops who grilled Anthony and investigated Caylee's death.  When asked whether he still believed that Anthony was guilty, Allen replied, "I certainly don't have any doubt."

Consider also the interesting reality that federal gun laws (and apparently also Florida gun laws) only prohibit gun possession by persons convicted of a felony or a misdemeanor involving domestic violence.  Anthony's acquittal on all felony charges and convictions only for lying to the police would apparently not prohibit her, as a matter of state and federal statutory law, from now buying a gun upon her release from jail in a few days.

But if state or federal statutory laws (or related permitting regulations) were somehow read to prevent Anthony from buying a gun, am I wrong to suggest she might still have a fundamental constitutional right to buy a gun for self protection after Heller and McDonald?  Though not precise on the Second Amendment's contours, Heller and McDonald and subsequent lower court rulings all suggest the right of personal self-defense is closely linked and related to the core of the Second Amendment right to keep and bear arms.  The ABC News story reinforces that few persons in the US may be facing personal threats comparable to Anthony (and the same story may give her reason to worry that local police are now not likely eager to take a bullet for her).

Then again, the Seventh Circuit's recent Ezell ruling (discussed here) strongly suggests that it is only "law-abiding, responsible citizens" who get the full protection of the fundamental rights safeguarded by the Second Amendment.  Notwithstanding her jury acquittal on all felony counts, the evidence presented at Anthony's trial surely established that Anthony is not a prime example of a "law-abiding, responsible citizen."  Thus, I return to the serious question in the title of this post: Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

A few related Second Amendment posts:

July 12, 2011 in Celebrity sentencings, Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (11) | TrackBack

Friday, July 08, 2011

"Burress says he met two-year prison sentence with disbelief"

The title of this post is the headline of this piece from NFL News, which reports on a recent revealing interview with recently released Plaxico Burress.   Here are excerpts:

Plaxico Burress has seen the view from the top of life, so when he suddenly found himself behind bars, he couldn't believe how low he had sunk so quickly.

Little over a year after his touchdown catch in Super Bowl XLII capped the Giants' 17-14 upset of the previously undefeated New England Patriots in February 2008, Burress was imprisoned on a felony weapons charge, the result of him accidentally discharging an unlicensed handgun in a Manhattan nightclub.

"To go on the other side of that wall, to be on the inside of that fence, knowing what your world and life is supposed to be on the other side, when they close that door behind you, you say to yourself, 'Is this really serious?' " Burress told Fran Charles in an exclusive interview on NFL Network's "NFL Total Access" on Thursday. "I actually said to myself a couple times when I first went in, 'You know what? Somebody's going to come and get me tomorrow.' "...

The wide receiver said he originally expected to serve at most a four- to six-month sentence for reckless endangerment and that it took some time for him to accept the reality of his situation -- a two-year prison sentence.  Burress was released in June, three months early for good behavior....

Burress described his prison time as "an out-of-body experience" that changed him for the better.  He said his approach to life now is about patience, something he'll have to show plenty of as he attempts to return to the NFL.

This interview confirms and continues my concern that Plaxico's legal team failed to fight against his criminal charges as effectively as it might have give the plausible Second Amendment defense that I still think he could and should have mounted.

Some related posts on the Burress cases:

July 8, 2011 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Thursday, June 30, 2011

District judge finds Eighth Amendment problem with stacked mandatories for juve gun offender

Thanks to this post at the Southern District of Florida Blog (which always has lots of interesting coverage of federal law and sentencing), I have learned of this important Eighth Amendment ruling based on Graham and the application of federal gun mandatories.  Here are key excerpts from Judge Cook's opinion in US v. Mathurin:

Here, Mathurin faces a mandatory minimum 307-year sentence.  Because Congress hasabolished the federal parole system, this sentence gives Mathurin no possibility of release basedon demonstrated maturity and rehabilitation.  A significant portion of this sentence is comprisedof mandatory 25-year consecutive sentences required under § 924(c)(1)(D)(ii), which provides:

[N]o term of imprisonment imposed on a person under this subsection shall runconcurrently with any other term of imprisonment imposed on the person,including any term of imprisonment imposed for the crime of violence or drugtrafficking crime during which the firearm was used, carried, or possessed.

Under Graham, this provision of § 924(c)(1)(D) is unconstitutional as applied to Mathurin, a juvenile offender convicted of non-homicide offenses.  To apply the statute in accordance withthe Eighth Amendment, severance of the constitutionally offensive portion of § 924(c)(1)(D) is necessary....

[C]onsistent with Congress’s intent and with Supreme Court precedent on thedoctrine of severability, I find that the language of § 924(c)(1)(D)(ii) mandating consecutive sentences for subsequent violations is excisable from the remainder of the statute as it applies to Mathurin and similarly situated juvenile defendants.  This holding is limited to the unique circumstances of this case, which involves a non-homicide juvenile offender sentenced under § 924(c)(1) for multiple counts of possession of a firearm during the commission of a violent crime; it does not affect the consecutive sentence requirement as applied to adult offenders or juvenile offenders under different factual circumstances....

Under this narrow holding of this case, Mathurin’s sentence amounts to 492 months in prison.  Additionally, under 18 U.S.C. § 3624(b), Mathurin may reduce his sentence by 54 days per year of incarceration if he “display[s] exemplary compliance with institutional disciplinaryregulations.”  Pursuant to 18 U.S.C. § 3624(b), Mathurin may reduce his total sentence byapproximately 5.5 years.  Thus, if Mathurin demonstrates maturity and rehabilitation, he may beeligible for release at around the age of 53.

Mathurin’s total term of incarceration, consideringthe potential reductions under 18 U.S.C. § 3624(b), complies with both the Eighth Amendmentand Congress’s statutory requirements.

June 30, 2011 in Assessing Graham and its aftermath, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, June 11, 2011

Are severe mandatory minimums for certain gun crimes especially problematic after Heller?

The question in the title of this post is inspired by this Washington Times commentary from FAMM president Julie Stewart headlined " Second Amendment injustice Mandatory minimums for self-defense must end."  Here are excerpts:

In June 2008, the U.S. Supreme Court ruled that the Second Amendment to the Constitution protects an individual’s right to possess a firearm “and to use that arm for traditionally lawful purposes, such as self-defense within the home.”...   This [ruling] must ring awfully hollow to Orville Lee Wollard who, two years ago tomorrow was sentenced to two decades in a Florida prison for protecting his family with a firearm.

On a spring morning in 2008, Wollard got a panicked call from his wife.  The teenage boyfriend who had been beating up his 15-year old daughter was back at their house causing trouble.  Wollard rushed home and found the boy on the porch and his daughter with a black eye.  Wollard told the boy to leave, but instead, the boy attacked him, ripping out stitches from Wollard’s recent surgery, and then ran off with Wollard’s daughter.  When the two returned several hours later, the boyfriend began shoving Orville’s daughter around the Wollards’ home.  Wollard’s wife and eldest daughter screamed for him to do something. Wollard was frightened for his daughter’s and his family’s safety.

He grabbed his legally registered pistol and confronted the boy, again asking him to leave.  The boy stopped assaulting Wollard’s daughter.  He smiled, punched a hole in the wall, and began moving toward Wollard. Wollard, who had had firearms training as a former member of the auxiliary police force, aimed a bullet into the wall next to the boyfriend to scare him. No one was hurt, and the boy finally left.  That is where this story should have ended, but it didn’t. 

Several weeks later, the abusive boy called the police to report Wollard for aggravated assault, and Wollard was arrested.  Orville Wollard did not think he had committed a crime by protecting his family. He rejected a plea deal that would have given him probation and a felony record and instead took his case to court.  Prosecutors charged Wollard with various crimes, including shooting into a dwelling (his own house), child abuse (because the boy was under 18) and aggravated assault with a weapon.  A jury convicted Wollard of possessing and discharging a firearm, which triggered Florida’s mandatory minimum sentence for aggravated assault with a weapon.  Wollard was sentenced to the mandatory prison term of 20 years without parole.

At sentencing, the judge said, “This [sentence] is obviously excessive … if it weren’t for the mandatory minimum … I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of the event.”  For his part, Wollard told the court, “I’m amazed. I’m stunned. I have spent my life pursuing education [and] helped the community. [T]hen one day this person breaks into my house … he continues to do this, he assaults my daughter, he threatens me, I protect myself.  [N]o one is injured in this whole thing, and I’m going to prison. … And again, with all respect to [the court], I would expect this from the former Soviet Union, not the United States.”

Wollard is right.... To be clear, a jury found Wollard guilty.  Jurors apparently did not believe he acted in self-defense..... Whether this jury reached the correct conclusion is open to debate.  Whether prosecutors should have charged a crime that carried such a harsh mandatory minimum sentence bears scrutiny.

What is beyond debate is that when judges are prevented from applying sentences that are appropriate to the unique circumstances of each case, injustice is inevitable.  And when the constitutional right to bear arms is at stake, violations of the bedrock tenet of American justice -- that the punishment should fit the crime and the offender -- are all the more intolerable.

June 11, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (19) | TrackBack

Monday, June 06, 2011

"Plaxico Burress released from prison"

The title of this post is the headline of this news piece at ESPN, which gets started this way:

Plaxico Burress was released from prison Monday after serving nearly two years on a gun charge.  As he left Oneida Correctional Facility in central New York Monday morning, he hugged agent Drew Rosenhaus and shook hands.  He was wearing a black sweatshirt, black shorts, black sneakers and a Philadelphia Phillies hat.

"I just want to thank God for bringing me through one of the most trying times in my life," he said to reporters outside the prison.  "It's a beautiful day.  It's a beautiful day to be reunited with my family. I want to go home and spend some quality time with them."

"I'd like to thank everybody for their prayers and words of encouragement," he said. "I'd like to thank all my fans all around the world for the thousands of letters, for their unwavering support.  As far as football is concerned, if and when everything gets settled, when they get back on the field, I'll be ready."

I remain disappointed that Plaxico opted to serve two years in prison rather than pursue a Second Amendment defense to his gun possession charges.  However, now that PLax has done his time, he surely will be in a position to try to follow Michael Vick's NFL prison-to-star redemption path.

June 6, 2011 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Thursday, May 19, 2011

Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users

As detailed in this AP report, today the "Oregon Supreme Court unanimously ruled Thursday that a retired school bus driver can have her medical marijuana and a concealed handgun, too." Here are the basics:

The ruling upheld previous decisions by the Oregon Court of Appeals and circuit court that determined a federal law barring criminals and drug addicts from buying firearms does not excuse sheriffs from issuing concealed weapons permits to people who hold medical marijuana cards and otherwise qualify. "We hold that the Federal Gun Control Act does not pre-empt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses," Chief Justice Paul De Muniz wrote in the ruling issued in Salem.

Cynthia Willis, one of four plaintiffs, welcomed the ruling. "I feel like a big girl now," Willis said. "I feel like a real human being now, not just a source of revenue to the county."

Leland Berger, the attorney representing Willis and other medical marijuana patients in the state, said the ruling was important in the continuing national debate over making marijuana legal to treat medical conditions. "I am hopeful we will end cannabis prohibition the same way we ended alcohol prohibition, which was by refusing to enforce federal laws within the state," Berger said....

Willis, 54, has carried a Walther .22-caliber automatic pistol for personal protection since a messy divorce several years ago. She volunteers at a Medford smoke shop that helps medical marijuana patients find growers, and teaches how to get the most medical benefit from the pound-and-a-half of pot that card carriers are allowed to possess. She uses marijuana cookies, joints and salves to treat arthritis pain and muscle spasms.

Elmer Dickens, a lawyer representing the sheriffs of Washington and Jackson counties, said the ruling provided needed clarification on whether the defendants should follow federal or state law on what has been a cloudy issue. Dickens did not anticipate an appeal to the U.S. Supreme Court, because the ruling focused so tightly on state law. "Every sheriff knows now what the rules are, and we got what we needed," he said.

The ruling also said Congress has no constitutional authority to require states to use gun licensing statues to enforce a federal law like the prohibition on handguns for marijuana users....

Oregon Attorney General John Kroger had argued in favor of the medical marijuana patients and against the sheriffs of Jackson and Washington counties who withheld handgun permits....

Nearly 40,000 Oregonians hold medical marijuana patient cards, with more than 36,000 of them for severe pain, according to Oregon Medical Marijuana Program statistics. Another 22,000 are registered as growers, and 21,000 as caregivers.

The unanimous ruling from the Oregon Supreme Court is available at this link.  It will be interesting to see if any federal officials either at the Justice Department or in Congress have any official reaction to this ruling or the broader issues or "lawful" possessors of pot and guns.  Because the pot use issue skews left and the gun possession issue skews right politically, I suspect that most federal folks and politicians will just seek to avoid having to discuss this ruling and the intersection of drug policy and gun policy in states like Oregon that tend to favor individuals on both fronts over government control.

May 19, 2011 in Drug Offense Sentencing, Graham and Sullivan Eighth Amendment cases, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, May 04, 2011

Two notable new empirical pieces on sentencing realities via SSRN

Recently posted on SSRN are these two very different pieces making very different empirical claims about sentencing realities:

A Test of Racial Bias in Capital Sentencing by Alberto Alesina and Eliana La Ferrara

Abstract: This paper proposes a test of racial bias in capital sentencing based upon patterns of judicial errors in lower courts. We model the behavior of the trial court as minimizing a weighted sum of the probability of sentencing an innocent and that of letting a guilty defendant free. We define racial bias as a situation where the relative weight on the two types of errors is a function of defendant and/or victim race. The key prediction of the model is that if the court is unbiased, ex post the error rate should be independent of the combination of defendant and victim race. We test this prediction using an original dataset that contains the the race of the defendant and of the victim(s) for all capital appeals that became final between 1973 and 1995. We find robust evidence of bias against minority defendants who killed white victims: in Direct Appeal and Habeas Corpus the probability of error in these cases is 3 and 9 percentage points higher, respectively, than for minority defendants who killed minority victims.

Estimating the Deterrent Effect of Incarceration Using Sentencing Enhancements by David Abrams

Abstract:  Increasing criminal sanctions may reduce crime through two primary mechanisms: deterrence and incapacitation. Disentangling their effects is crucial, since each mechanism has different implications for optimal policy setting. I use the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on gun law results in a roughly 5 percent decline in gun robberies within the first three years. This result is robust to a number of specification tests and does not appear to be associated with large spillovers to other types of crime.

May 4, 2011 in Data on sentencing, Death Penalty Reforms, Gun policy and sentencing | Permalink | Comments (2) | TrackBack

Sunday, April 17, 2011

On the state SCt dockets: LWOP for teens in California and guns for pot users in Oregon

I sure wish an enterprising criminal law academic and/or practitioners would follow closely via a blog or other on-line resource all the interesting and ground-breaking criminal justice issues that regularly come before state supreme courts.  There are  lots of really good blogs that cover various specific criminal justice issues and some that give special attention to important criminal law rulings coming from certain federal circuits or a particular state's courts.  But to my knowledge, nobody keeps a focused blogsphere eye on many cutting-edge criminal law issues as they come before state supreme courts generally.

This moment of longing comes to mind not only because I know I no longer am able to keep up with all significant state Blakely and death penalty developments, but also  because of two new pieces at How Appealing reporting on two notable new cases before state supreme courts in California and Oregon:

April 17, 2011 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, April 10, 2011

Baltimore gun offender registry declared unconstitutional as operated

This local article, headlined "Judge says Baltimore gun registry unconstitutional: Decision chides "vague, overly broad" regulations," reports on an interesting and important ruling from Maryland's state courts late last week. Here are the details:

Baltimore's gun offender registry is unconstitutional, a Circuit Court judge ruled Friday, calling into question one of the city's signature programs against gun violence. Judge Alfred Nance said the Police Department had "failed or refused to comply" with establishing clear regulations for the registry, which required people convicted of gun crimes to provide addresses and other information with the city every six months for a period of three years.

The city judge also called the program, created in 2007, "unconstitutionally vague and overly broad."  Among the data registrants must provide, according to a list, is "any other information required by the rules and regulations adopted by the Police Commissioner," language that Nance said appeared to give police "limitless discretion." The city said it was considering whether to appeal.

Though Nance's opinion is not binding on other judges, they might follow his lead, said University of Maryland law professor Douglas Colbert.  "It will have an effect over anyone appearing before Judge Nance, and it could have an influential effect on his colleagues," said Colbert. "It's a ruling the state would likely not want to remain unchallenged."

Sheryl Goldstein, director of the mayor's Office on Criminal Justice, said city officials are pleased that the opinion reaffirmed that the program did not conflict with state laws, a complaint that had been raised when the program was being created.  "This is one judge's opinion, and one of the first on the issue," she said. "We're considering all of our legal options, and in the meantime, we're going to keep the gun offender registry up and running."

The Office of the Public Defender brought the challenge in the case of Adrian Phillips, who was convicted of armed robbery and handgun offenses in 2008.  He was charged in February with failing to register as a gun offender as a result of that sentence....

The law was modeled after a registry in New York City, and fueled by statistics showing that half of those charged with homicides in Baltimore had previous gun convictions.  City officials say the program helps police keep close tabs on repeat offenders and other "bad guys with guns," as Police Commissioner Frederick H. Bealefeld III often calls them....

"The purpose of crafting the gun offender registry was to create a method of oversight and knowledge of gun offenders, with the idea of deterring future gun crime," Goldstein said.  "Folks who are registered have a low rate of recidivism, period, and very low with respect to gun crime."

The law requires those convicted of shootings or other violations of gun laws to provide personal information to the police for a citywide database.  Offenders must provide names, aliases, addresses and information about their convictions twice a year.  Police also visit homes to verify addresses and connect offenders with social services.

Nance said the city could legally create a gun offender registry, but the Police Department had failed to give "reasonable guidance and fair notice to the public" on the specifics of the law. "The rules and regulations are not simply unclear, they are unknown and unreviewable outside of the walls of the Police Department," he wrote.

The ruling here apparently upholds the basic concept of a local gun offender registry, a concept which itself seems to have perhaps more empirical support as a contributor to public safety than sex offender registries.  As a result, I hope that the folks in Baltimore (and perhaps in other communities with serious gun violence problems) will continue to refine this form of a registry in order to make its operation constitutionally sound.

April 10, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, April 04, 2011

"Medical marijuana users fight for gun rights"

The title of this post is the headline of this AP article, which warms my libertarian heart. (Hat tip: How Appealing.)  Here are parts of the report:

Cynthia Willis calls up and down the firing range to be sure everyone knows she is shooting, squares up in a two-handed stance with her Walther P-22 automatic pistol and fires off a clip in rapid succession. Willis is not only packing a concealed handgun permit in her wallet, she also has a medical marijuana card. That combination has led the local sheriff to try to take her gun permit away.

She is part of what is considered the first major court case in the country to consider whether guns and marijuana can legally mix. The sheriffs of Washington and Jackson counties say no. But Willis and three co-plaintiffs have won in state court twice, with the state's rights to regulate concealed weapons trumping federal gun control law in each decision.

With briefs filed and arguments made, they are now waiting for the Oregon Supreme Court to rule. When it's over, the diminutive 54-year-old plans to still be eating marijuana cookies to deal with her arthritis pain and muscle spasms, and carrying her pistol. "Under the medical marijuana law, I am supposed to be treated as any other citizen in this state," she said. "If people don't stand up for their little rights, all their big rights will be gone."...

Oregon sheriffs are not happy about the state's medical marijuana law. "The whole medical marijuana issue is a concern to sheriffs across the country who are involved in it mainly because there is so much potential for abuse or for misuse and as a cover for organized criminal activity," said Washington County Sheriff Rob Gordon, who became part of the Willis case because his office turned down three medical marijuana patients in the Portland suburbs for concealed handgun permits. "You can't argue that people aren't misusing that statute in Oregon. Not everybody, of course. Some have real medical reasons. But ...the larger group happens be people who are very clearly abusing it."

The sheriffs argue that the 1968 U.S. Gun Control Act prohibits selling firearms to drug addicts, and they say that includes medical marijuana card holders. Their briefs state that they cannot give a permit to carry a gun to someone prohibited from buying or owning a gun. But the cardholders have won so far arguing this is one situation where federal law does not trump state law, because the concealed handgun license just gives a person a legal defense if they are arrested, not a right.

Oregon's attorney general has sided with the marijuana cardholders, arguing that the concealed handgun license cannot be used to buy a gun, so sheriffs who issue one to a marijuana card holder are not in violation of the federal law....

Sixteen states now have medical marijuana laws, according to NORML, an advocacy group. There is no way to determine how many medical marijuana cardholders also have gun permits. Patient lists are confidential, and an Oregon court ruled the sheriffs can't look at them.

NORML executive director Allen St. Pierre said Oregon courts have not been entirely medical marijuana friendly. While they have upheld the right to pack a pistol, they have also ruled that employers can fire people who use medical marijuana. "A person who uses medical cannabis should not have to give up their fundamental rights as enumerated by the Constitution,"' St. Pierre said. Gordon said he expects the gun issue to come up in other states with medical marijuana laws.

April 4, 2011 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (7) | TrackBack

Wednesday, March 16, 2011

Eleventh Circuit rejects notable ACCA selective prosecution claim

The Eleventh Circuit today in US v Jordan, No. 10-11534 (11th Cir. March 16, 2011) (available here) rejects an interesting selective prosecution claim brought by a Georgia defendant asserting that "prosecutors in the Northern District of Georgia target African Americans for prosecution under the Armed Career Criminal Act."  Here is the heart of the panel's discussion of the claim:

The district court correctly denied Jordan’s motion to dismiss for selective prosecution because, at the very least, he failed to establish discriminatory effect.  As the record shows, Jordan was convicted of possession of a firearm and subject to the Armed Career Criminal Act sentencing enhancement under 18 U.S.C. § 924(e)(1), because he had been convicted of at least three prior qualifying convictions for purposes of the ACCA.  In order to establish discriminatory effect, Jordan would have to present clear evidence that a similarly situated defendant of another race was treated differently than he.  The data that Jordan submitted in his motion to dismiss showed only that African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, while they account for significantly less than 93% of the general population or of the population of convicted felons who carry firearms.  Jordan’s data did not, however, include the criminal histories of the other defendants. As a result, his figures are not probative of the “similarly situated” inquiry of the discriminatory effect test.  See Bass, 536 U.S. at 864; Quinn, 123 F.3d at 1426.  Indeed, Jordan did not show that a single arrestee who was not prosecuted under the ACCA qualified for such prosecution, much less possessed a criminal history as substantial as his own.  Therefore, he “has not presented ‘some’ evidence tending to establish selective prosecution,” much less facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.  Accordingly, Jordan was not entitled to an evidentiary hearing or discovery on the claim, and his selective prosecution claim fails.

I think the Eleventh Circuit is right on the law here, but I hope I am not the only one troubled to learn that there is evidence indicating that "African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia."  That data point alone does not itself prove or even necessarily suggest constitutionally-biased prosecutorial decision-making, but it is a data point that is deeply disturbing even if it is not in any way the product of constitutionally questionable decision-making.

March 16, 2011 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Friday, February 11, 2011

Connecticut legislators exploring creation of state-wide gun-offender registry

As detailed in this local Connecticut article, a "measure that would create the nation's first statewide registry for gun offenders went before lawmakers Thursday at a public hearing on a package of gun bills."  Here are the specifics:

The gun-offender database, modeled after the sex-offender registry, would give police a potent new tool to combat violence, said Senate Majority Leader Martin Looney (D-New Haven), who proposed the idea. Several cities, including New York City, Baltimore and Washington D.C., have established such requirements for gun offenders, but no state has done so, Looney said.

Just as those convicted of sex offenses must check in with local authorities, gun offenders would be required to register with local police. But unlike the sex-offender registry, the information on gun offenders would be accessible only to law enforcement officials.

The requirement would apply to people who committed serious gun violations such as those who used a firearm to commit a crime, Looney said. "No law-abiding citizen or sportsman would have anything to fear from this bill," he said.

During the hearing before the legislature's public safety committee, several lawmakers questioned why the registry was needed. They pointed out that a national crime database already contains information about gun offenders. But Looney and other supporters said the registry, unlike the national database, would give law enforcement the ability to pinpoint where the offenders live.

And, like the sex-offender registry, the mere fact of filing with local authorities "creates a psychological impact of knowing [the offender] is being watched more closely," Looney said....

Looney's proposal was supported by police but drew criticism from gun owners and their lobbyists. "If we're going to have a gun-offender registry, why don't we have a carjacking registry? ... Why don't we have a DWI registry?" asked Robert T. Crook, executive director of the Coalition of Connecticut Sportsmen.

February 11, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, December 30, 2010

Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)

The Fourth Circuit has added a final bit of Second Amendment fireworks to close out 2010 through a long decision today in US v. Chester, No. 09-4084 (4th Cir. Dec. 30, 2010) (available here).  Here is how the majority opinion by Chief Judge Traxler starts and ends in Chester:

The sole issue presented in this appeal is whether William Samuel Chester’s conviction for illegal possession of a firearm under 18 U.S.C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate the decision below and remand for further proceedings....

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants.  The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal.  Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond.  Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.

Here is how Judge Davis starts and ends a quite lengthy concurrence:

In light of the highly persuasive decision of the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. pending, sustaining the constitutionality of 18 U.S.C. § 922(g)(9), the district court should have no difficulty in concluding that the application of § 922(g)(9) to offenders such as Chester passes Second Amendment scrutiny, exactly as district courts have already concluded. See United States v. Smith, 2010 WL 3743842 (S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining statute); United States v. Staten, 2010 WL 3476110 (S.D.W. Va. Sept. 2, 2010) (same)....

I can foresee no difficulty for the district court in sustaining the constitutional validity of the application of § 922(g)(9) in this case.  Nevertheless, under the circumstances of the law’s understandably slow evolutionary course of development, I am content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.

A few related Second Amendment posts:

UPDATE:  Eugene Volokh has this effective new post discussing the Chester opinion, which has prompted an interesting comment dialogue about whether and how often minor matters get turned into domestic violence misdemeanor.  And, like the thoughtful comments below, folks at Volokh are discussing whether William Samuel Chester’s makes an effective poster-child for Second Amendment rights.

December 30, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (8) | TrackBack

Tuesday, December 21, 2010

NJ Governor Christie commutes controversial gun possession sentence

A helpful reader alerted me to a notable clemency development from the Garden State, which is reported in this Fox News piece.  Here are the basic from the start of the news report:

A man given seven years in prison after being found with two guns he purchased legally in Colorado has had his sentence commuted, New Jersey Gov. Chris Christie announced Monday.

The case of Brian Aitken, 27, had become a cause célèbre among gun-rights advocates. On Jan. 2, 2009, Aitken, an entrepreneur and media consultant with no prior criminal record, muttered to his mother that life wasn't worth living after a planned visit with son was abruptly canceled at the last minute. Aitken then left his mother's home in Mount Laurel as she called police, who later found two locked and unloaded handguns in the trunk of his car.

Aitken had purchased the guns legally in Colorado, and he passed an FBI background check when he bought them, according to his father, Larry Aitken.  Brian also contacted New Jersey State Police before moving back back to the Garden State to discuss how to properly transport his weapons.  But despite those good-faith efforts, Larry Aitken said, Brian was convicted on weapons charges and sent to prison in August.

Judge James Morley would not allow the argument in trial earlier this year and Christie later declined to reappoint the judge due to an unrelated case.

According to an order for commutation of sentence released by Christie on Monday, Aitken was to be released from custody as soon as administratively possible.  The order is subject to revocation at any time.

The official Order for Commutation of Sentence can be found at this link.

December 21, 2010 in Clemency and Pardons, Gun policy and sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, December 14, 2010

Another star going to NY prison for years for gun possession... and prompting more Second Amendment wondering

As detailed in this news report, "Ja Rule became the latest US rapper to face jail on a gun charge, after pleading guilty Monday in New York to attempted possession of a weapon, prosecutors said." Here are the basics:

Ja Rule, whose real name is Jeffrey Atkins, is expected to be sentenced to two years behind bars and 18 months of supervised release after pleading guilty to attempted criminal possession of a .40 caliber handgun.

Sentencing is on February 9, a spokeswoman for the Manhattan District Attorney's office said. A more severe punishment could have been expected had Ja Rule gone to trial and been convicted.

Manhattan District Attorney Cyrus Vance said that the city, which has some of the strongest anti-gun laws in the nation, is still working to stem gun violence. "Gun crimes are serious offenses and today's guilty plea should send a serious message to anyone thinking of illegally bringing a gun into New York City," he said.

The rapper was caught with the pistol in his sports car after a 2007 concert in Manhattan. He had been performing alongside rapper Lil Wayne who was also charged with gun possession in a separate arrest and spent much of 2010 in prison.

Though I do not know all the details surrounding Ja Rule's gun possession and the plea deal his attorney's worked out here, I do know that I continue to be disappointed and somewhat surprised that high-profile celebrity defendants facing serious prison time for mere gun possession are not trying to actively litigate a Second Amendment defense to their prosecution.  Assuming all that the Ja Rule did wrong was to possess a handgun and that he could reasonably claim that he possessed this handgun for personal self-defense, I do not fully understand why Ja Rule and his lawyers (and his agents) would not want to try to litigate a Second Amendment claim based on Heller and McDonald through the New York state courts.

For low-profile and not-wealthy defendants, I can understand how the notoriety and economic costs of a Second Amendment challenge may make such a defense to gun possession charges not worth pursuing.  But for a rapper like Ja Rule, the notoriety could be a benefit to his career and the economic costs should not be a show-stopper.  (Indeed, I suspect some public interest lawyers might even take on a high-profile constitutional case like this at a discount.)   Moreover, Ja Rule would likely be able to stay out on bail while this kind of claim was litigated, and the prospects for a good plea deal would not seem to get much worse from the decision to litigate a constitutional challenge to the very law with which the defendant is charged.

If Ja Rule has a long criminal history of other offenses or if there are other factors preventing him from being a sympathetic Second Amendment litigator, then I guess I understand why he might accept two-years in prison for simple gun possession.  But lots of defendants get much less prison time for crimes that seem much worse and do not have even the patina of the exercise of a fundamental constitutional right.  Thus, I never quite understand why defendants like Ja Rule and Plaxico Burress and Lil Wayne accept deals that mean long stretches in prison for doing something that a majority of the Supreme Court might well say is constitutionally protected to do. 

December 14, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (8) | TrackBack

Friday, November 19, 2010

Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities

As reported in this piece in the Atlanta Journal-Constitution, which is headlined "Federal judge to plead guilty in drug case," senior U.S. District Judge Jack Camp appears to have worked out a sweet plea deal following his arrest on various drug and gun offenses.  Here are some of the specifics:

Senior U.S. District Judge Jack Camp, whose arrest on charges of buying drugs and his relationship with a stripper shocked the state's legal community, will plead guilty Friday to federal charges, his lawyer said.  “We’ve reached a mutually agreeable resolution of the case,” Atlanta attorney Bill Morrison said Thursday.  Morrison would not disclose the specific charges the judge would plead guilty to.

Camp, 67, is scheduled to enter his plea in Atlanta before Senior U.S. District Judge Thomas Hogan, a judge from Washington who was assigned the case.  On Thursday, Hogan disclosed Camp's decision to enter a guilty plea in an entry on the court's online docket sheet.

In a court filing Thursday, federal prosecutors indicated Camp will plead guilty to at least one felony charge -- aiding and abetting a felon's possession of cocaine, a painkiller and marijuana.  The filing did not disclose whether Camp will enter pleas to other charges.

Camp could avoid prison time if, as expected, his agreement with federal prosecutors does not require him to plead guilty to the most serious charge against him — being an illegal drug user who was found in possession of a handgun — said Steve Sadow, an Atlanta defense attorney who is not involved in the case.  Federal sentencing guidelines recommend at least five months in prison for that charge, Sadow said. If Camp pleads guilty to lesser charges, he could receive probation, home confinement or time in a halfway house, he said.

Camp, a member of a prominent Coweta County family, was appointed to the federal bench by President Ronald Reagan in 1988.  He was serving as chief judge when he took senior status at the end of 2008.

Camp was arrested in early October, and a detailed affidavit by an FBI agent accused the judge of buying cocaine, marijuana and prescription painkillers.  The affidavit said Camp shared the drugs with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta.

Camp, who is married, met the dancer when he purchased a private dance from her, the affidavit said.  He returned the next night and purchased another dance and sex from her, and the two then began a relationship that revolved around drug use and sex, according to court records.

The stripper began cooperating with the FBI, and on Oct. 1 she asked Camp to follow her to a drug deal to protect her.  Camp agreed, saying, "I'll watch your back anytime. ... I not only have my little pistol, I've got my big pistol so, uh, we'll take care of any problems that come up," the affidavit said.

Though federal practitioners can and should correct me if I am wrong, I believe it is fairly uncommon that a defendant involved in a series of drug transactions with the involvement of firearms will be able to cut a plea deal that enable him to potentially avoid any prison time. I am not directly asserting that Judge Camp is getting special treatment, but I do think the judge's own familiarity with the ins-and-outs of federal criminal law and practice likely played a significant role in how this case is getting resolved.

In the end, I will be surprised if any plea deal here locks in a specific sentence of Judge Camp. Assuming the deal leaves Judge Hogan with some sentencing discretion, I would not be surprised if Judge Camp still may face some hard time. (And perhaps readers might want to give Judge Hogan some early sentencing advice via the comments.)

Related post (which generated lots of comments):

UPDATE:  This new AP report provides details on the basics of the plea that was entered today:

U.S. Senior Judge Jack T. Camp pleaded guilty to the felony charge of aiding and abetting a felon's possession of cocaine when he bought drugs for the stripper, who was secretly cooperating with authorities. He also pleaded guilty to two misdemeanors: possession of illegal drugs and illegally giving the stripper his government-issued laptop.

Camp, 67, faces up to four years in federal prison when he is sentenced March 4, but he is likely to get less time. Camp also agreed to resign from the bench and cooperate with any questions authorities may have regarding the cases he handled while he was being investigated.

When a judge asked Camp if the charges were accurate, he replied, "I regret ... I am embarrassed to say it is, your honor." Neither he nor his attorneys offered any explanation for his actions.

November 19, 2010 in Booker in district courts, Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, July 15, 2010

NBA's Delonte West sentenced (lightly? harshly?) for weapons offenses in Maryland

The fact that the Supeme Court has now made clear that the Second Amendment applies to the states apparently did not prompt NBA player Delonte West or his lawyer to think he ought to try to fight his prosecution for keeping and bearing arms on a Maryland highway last year.  As detailed in this Washington Post article, West today pleaded guilty and was sentenced for his arms possession:

NBA player Delonte West pleaded guilty Thursday to two weapons charges and was sentenced by a Prince George's County judge to eight months of home detention, two months of probation and 40 hours of community service.

West had been charged with six weapons offenses and two traffic violations. He pleaded guilty to carrying a dangerous weapon -- an eight-inch bowie knife -- and illegally transporting a handgun.

At a court hearing in Upper Marlboro, West's attorney, C. Todd M. Steuart, said his client was taking the weapons from his mother's home in Brandywine to his house in Fort Washington when he was stopped by a Prince George's police officer on the Capital Beltway in the Landover area, miles away from either home. West was carrying two handguns, a shotgun, the knife and more than 100 shotgun rounds.

West told Circuit County Judge Graydon S. McKee III that he felt remorse for the incident. "I want you to know how apologetic I am to you and all the other professionals in here who do the right thing," he said. West said he often speaks to Washington area youth who have been in trouble. "I'm able to share my experiences with them," he said. "I'm able to relate to them. If I never dribble a basketball again, I think I found my calling."

Following the hearing, State's Attorney Glenn F. Ivey said the sentence will allow West to go to Cleveland for his job as a player with the Cleveland Cavaliers. West will be allowed to attend practices, home games and away games, Ivey said.

Prince George's prosecutors typically ask for a year in jail for defendants convicted of a weapons offense. Judges usually sentence defendants with no prior convictions -- like West -- to probation or home detention, Ivey said. The terms of West's plea bargain ensure he is being treated no differently than any other defendant in similar circumstances, Ivey said.

As the title to this post suggests, I am unsure whether it is fair to view West's sentence as light, harsh, or perhaps just right.  As I suggested in this post right after West's arrest, a person with a robust view of the Second Amendment might be greatly concerned that West is subject to a significant sanction for merely keeping and bearing arms.  And yet, in light of the significant prison sentences given to Plaxico Burress and Lil Wayne for gun possession in New York City, West likely should consider himself lucky to avoid any serious jail time.

July 15, 2010 in Celebrity sentencings, Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Monday, June 28, 2010

Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession.  The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.

As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip 19 (emphasis in original).  In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause."  Slip op. at 33.  In short, individual gun rights are "fundamental," they help safeguard another "basic right,"  and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees." 

But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising?  Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment?  Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken?   (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications."  Slip op. at 35-36.)

And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'."  Slip op. at 39-40.  But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Some older posts on the Heller and felon gun rights:

June 28, 2010 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (44) | TrackBack

Monday, May 24, 2010

Cause for celebration: FBI stats show crime rates dropping again

This new Reuters report provides the latest, greatest encouraging statistics about crime rates:

Murders and auto thefts fell sharply in the United States in 2009, extending the downward trend in violent and property crimes, according to preliminary statistics released by the FBI on Monday.

It was the third straight annual decline in violent crimes and seventh straight annual decline for property crimes, which occurred despite a weak economy, which is often linked to spikes in criminal activity.

Each region of the country experienced a drop in crime, with the southern United States experiencing the largest decline -- a 6.6 percent drop -- according to the FBI.

It did not provide a reason for the overall decline, which came as the economy started to show signs of growth after one of the worst recessions since the Great Depression. Experts and politicians often link a sour economy with higher crime.

Murders fell 7.2 percent, while forcible rapes decreased 3.1 percent. Cities with 500,000 to 999,999 inhabitants saw violent crime, which also includes manslaughter and robbery, drop the most among city groupings, down 7.5 percent.

There was an increase in the number of murders in cities with populations of 25,000 to 49,999, jumping 5.3 percent. Additionally nonmetropolitan counties experienced a small increase as well, up 1.8 percent, the statistics showed.

In the nonviolent crime category, motor vehicle theft dropped 17.2 percent, while burglaries fell 1.7 percent, according to the preliminary figures released by the FBI. Arson also fell 10.4 percent in 2009.

As I have said before and will say again, the continued decrease in crime rates in recent years is an extraordinarily great development that all serious criminal justice researchers should be trying mightily to assess and better understand. I am not sure if we are doing anything that much better in the sentencing and corrections arenas, but everyone should be very grateful for the continuing positive trends whether or not any causes or reasons can be identified and creditted.

UPDATE: I just received via e-mail a link to this notable press release which provides a notable spin on the new crime data:

For the third year in a row, violent crime has declined in the United States while increasing numbers of American citizens own firearms and are licensed to carry, a trend that belies predictions of anti-gunners that more guns will result in more crime, the Citizens Committee for the Right to Keep and Bear Arms said today.

Preliminary data from the FBI’s Uniform Crime Report shows that the violent crime rate went down 5.5 percent in 2009, compared to statistics from 2008. This covers all four categories of violent crime: murder, robbery, aggravated assault and forcible rape. Violent crime went down 4 percent in metropolitan counties and 3 percent elsewhere, according to the FBI.

At the same time, the agency’s National Instant Check System reports continued increases in the number of background check requests and the National Shooting Sports Foundation has reported increased federal firearms excise tax allocations to state wildlife agencies, an indication that more guns and ammunition are being purchased.

“This translates to one irrefutable fact,” said CCRKBA Chairman Alan Gottlieb. “There are more guns in private hands than ever before, yet crime rates have declined. In plain English, this means that gun prohibitionists have been consistently wrong. Higher rates of gun ownership have not resulted in more bloodshed, as the gun ban lobby has repeatedly forecast with its ‘sky-is-falling’ rhetoric."

May 24, 2010 in Data on sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Monday, May 17, 2010

Interesting data and discussion about guns in DC roughly two years after Heller

With Graham and Comstock now decided, I think the biggest constitutional law case still pending for con law and criminal justice fans is probably the McDonald Second Amendment incorporation case.  (There are a bunch of other significant SCOTUS sentencing cases still pending --- BarberCarr, Dillon, Dolan to name a few --- but I suspect most of these will be decided on relatively narrow grounds.)   And with McDonald on the horizon, I found these data and discussions from this Wall Street Journal article about DC's post-Heller gun regulations quite interesting:

The U.S. Supreme Court overturned the District of Columbia's 32-year ban on handguns in 2008, a victory for the gun-rights lobby that seemed to promise a more permissive era in America's long tussle over gun ownership. Since then, the city has crafted rules that are proving a new, powerful deterrent to residents who want to buy firearms....

Eleanor Holmes Norton, the District of Columbia's non-voting representative in Congress, is blunt about the point of the city's laws: discouraging gun ownership. "To get them you have to go through a bureaucracy that makes it difficult," she said in an interview. Her constituents tend to oppose firearms because of gun violence, she said. "Nobody thinks we would have fewer shootings and fewer homicides if we had more relaxed gun laws."

Kenneth Barnes, 65, became a D.C. gun-law activist after his son was shot to death in his clothing store in 2001. He supports the city's current gun law. "I have no issue with the right to bear arms," but the Supreme Court's decision gave the city the right to set gun laws for its citizens, he said. "What we're talking about is self determination."

In 2009, the first full year the law was in effect, homicides in the city dropped to 143 from 186 in 2008. The 2009 total was the lowest since 1966....

Gun-control supporters say the District is acting within the Constitution, in that Heller didn't outlaw all gun control. "From our perspective, there's a broad range of gun-control steps that can be taken that would be constitutional post-Heller," said Chad Ramsey of the Brady Campaign to Prevent Gun Violence.

Wayne LaPierre, executive vice president of the National Rifle Association, said the city's new rules strike against the spirit of the Supreme Court's decision. "Can you go out and buy guns in D.C. and defend yourself as the Supreme Court said you should be able to? No. The citizens can't experience the freedom from a practical level. What good is winning it philosophically?"

In the months since the Heller decision through April, the city has registered 1,071 guns, including 756 handguns and 315 "long" guns, such as rifles. That's a rate of about 181 guns per 100,000 residents. Before the Supreme Court decision, the rate of registered guns in Washington was close to zero.

Across the U.S., federal law-enforcement agencies estimate the total number of guns is between 200 million and 350 million, which results in a rate between 65,000 to 114,000 guns per 100,000 people nationally.  A 2006 survey by the University of Chicago's National Opinion Research Center found gun ownership in 34% of all homes.

Right now, the legal advantage lies with the District. In a federal District Court ruling in March, Judge Ricardo Urbina upheld the city's gun law, writing that the Supreme Court didn't rule gun registration "unconstitutional as a general matter."  The judge concluded the city had the power to limit the kinds of firearms permissible and the size of ammunition magazines.

As regular readers know, I think many of the federal and state laws that categorically prohibit and threaten to severely punish any non-violent felon who takes possession of any kind of gun "strike[s] against the spirit of the Supreme Court's decision."  But, because dicta in Heller suggests that these laws were not unconstitutional as a general matter, those federal laws continue to operate to prevent millions of persons from keeping and bearing arms.  If (and when) the McDonald Second Amendment incorporation case opens up constitutional attacks on these laws at the state level, a cottage industry of gun regulation litigation is sure to ensue.

May 17, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack

Saturday, May 15, 2010

"Heller, McDonald and Murder: Testing the More Guns, More Murder Thesis"

The title of this post is the title of this piece on SSRN that is especially timely while we all await the Supreme Court's next ruling in the Second Amendment.  Here is the abstract:

We examine several aspects of the more guns, more murder hypothesis.  We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives.  Societies without guns are not typically peaceful and safe.  Historically, more guns are associated with less murder.  Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations.  In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.

May 15, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (2) | TrackBack

Friday, March 26, 2010

Lots of gun news from DC: Gilbert Arenas gets probation for gun possession, while Dick Heller loses latest Second Amendment case

Proponents of gun rights in DC might be inclined this afternoon to remember the old saying "ya' win some, ya' lose some," after gun possessor Gilbert Arenas had a pretty good day in a DC court, while gun possessor Dick Heller had a not-so-good day in a DC court.  Here are the basic headlines and leads from coverage from the Washington Post:

Washington Wizards star guard Gilbert Arenas was spared a jail sentence Friday when a judge sentenced him to probation for bringing guns into the Verizon Center, ending a high-profile locker room confrontation with a teammate that changed the makeup of the team and Washington-area sports.

D.C. Superior Court Judge Robert B. Morin issued the sentence after a 100-minute hearing before a packed courtroom. Morin sentenced Arenas to 18 months in jail, but suspended that part of the sentence. He ordered the star to serve two years probation to begin with 30 days in a halfway house. He also ordered Arenas to serve 400 hours of community service and pay a $5,000 contribution to a crime victim's fund.

Corrections officials will determine in the next few days what halfway house he will be assigned to. Once there, Arenas will stay overnight, but be allowed to leave during the day to serve his community service.

A federal judge on Friday upheld limitations on gun ownership that the District of Columbia put in place following a 2008 Supreme Court decision overturning the city's outright ban on handguns.

Dick Heller, the plaintiff in the landmark Supreme Court case, had challenged the new regulations, claiming the registration procedures, a ban on most semiautomatic weapons and other limitations violated the intent of the high court's decision.

U.S. District Judge Ricardo M. Urbina sided with the city, saying the Supreme Court decision did not ban reasonable limits on gun ownership designed to promote public safety. 

March 26, 2010 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 25, 2010

"Jail or no jail? Fateful day arrives for Arenas"

The title of this post is the headline of this new AP piece focused on the high-profile sentencing question that will be answered at a court proceeding in DC on Friday.  Here is some background to help readers opine on the question:

The Washington Wizards three-time All-Star point guard will be sentenced Friday in D.C. Superior Court on one felony count of violating the District of Columbia's strict gun laws. Judge Robert E. Morin will decide whether Arenas does jail time or gets probation. The prosecution and defense teams stated their cases earlier this week in voluminous filings. It's all far beyond anything Arenas imagined on that December morning when he says he brought four guns to the locker room to play a prank on a teammate.

Prosecutors want Arenas to go to jail for at least three months. They point out that he lied repeatedly about why the guns were in the locker room, that he tried to cover up what happened, that he displayed a cavalier attitude about the whole affair, that he knew bringing guns into D.C. was illegal, and that he has a prior gun conviction....

Arenas' lawyers are asking for probation and community service, arguing that he was playing a misguided joke with no intention to harm anybody. They point out that the guns were unloaded, that Arenas' lighthearted comments about the incident were misinterpreted, and that he's a good role model who goes beyond the call of duty when it comes to community service. They add that he was confused about D.C.'s gun laws, and that he's already been severely punished through humiliation and the loss of tens of millions of dollars from canceled endorsements and his suspension without pay for the rest of the NBA season....

The maximum term for Arenas' crime is five years. The sentencing guidelines for someone with his record call for 6-24 months, although those guidelines also allow for probation.

A general survey of similar cases over the last two years in the city indicate that about half of the defendants convicted of Arenas' crime receive some jail time, but the mitigating circumstances vary widely.  Arenas' prior conviction — a no contest plea to carrying a concealed weapon in California in 2003 — was already a major strike against him, and the evidence revealed this week that he appeared to instigate a cover-up — as shown in a text message produced by prosecutors — has further damaged his case....

Gun control advocates will be monitoring Friday's developments closely. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said he thinks jail time is appropriate in Arenas' case.

I am not at all surprised that gun control advocates are eager to have a prominent person imprisoned merely for possessing a gun and are vocally calling for jail time for Arenas.  I am also not surprised, though I am a but disappointed, that gun rights advocates are not providing any support for Arenas or urging that mere gun possess should not be the basis for a term of imprisonment.  Arenas, like Delonte West and Lil Wayne and Plaxico Buress and other similar celebrities who get in trouble for problematic gun possession in urban areas with strict gun control laws do not seem to be the type of gun owners that many gun rights advocates are eager to make their "test case" in either the media or the courts.

So, dear readers, you be the judge: what would you give Arenas?

Some related posts on the Arenas case and other celebrity gun possession cases:

March 25, 2010 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (3) | TrackBack

Tuesday, March 23, 2010

Federal prosecutors recommend 3-month prison sentence for gun possession by Gilbert Arenas

As detailed in this new post at a Washington Post blog, "Prosecutors recommended on Tuesday that Wizards star guard Gilbert Arenas spend three months in jail for bringing guns into the Verizon Center locker room."  Here's more:

Prosecutors also proposed that Arenas serve three years probation and perform 300 hours of community service. The recommendations came in a sentencing memo to the court that is required in most criminal cases. Arenas's formal sentencing is Friday.

In a scathing 61-page memo, Assistant U.S. Attorney Christopher R. Kavanaugh wrote that his office is seeking jail time primarily because Arenas initially provided inconsistent stories about why he had the guns in the locker room and that he never showed any remorse for his actions. "The defendant's conduct since the time of the incident establishes that he has shown little genuine remorse for anything other than how this incident may affect his career," Kavanaugh wrote.

"If any other individual without fame, power and the wealth of this defendant, brought four firearms into the District for the purpose of a similar confrontation," the prosecutor wrote, "the government would seek their incarceration and the court would almost certainly give it."

Arenas pleaded guilty on Jan. 15 in D.C. Superior Court to a felony count of carrying a pistol without a license. As part of a plea deal, prosecutors agreed not to ask for more than six months in jail. He has been free pending sentencing.

Superior Court Judge Robert E. Morin is not bound by the plea agreement -- a fact he emphasized in court in January -- and could sentence Arenas to anywhere from probation to a maximum five years in jail. The former all-star was released after agreeing to surrender his passport and not possess any handguns.

The charges stem from the now-infamous incident in the Wizards' locker room at Verizon Center on Dec. 21. At the hearing in January, Assistant U.S. Attorney Chris Kavanaugh filled in some of the details of the confrontation between Arenas and teammate Javaris Crittenton, without mentioning Crittenton by name.

Some related posts on the Arenas case and other celebrity gun possession cases:

March 23, 2010 in Celebrity sentencings, Gun policy and sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack