Thursday, January 09, 2014

"Are there no limits on Second Amendment rights?"

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

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

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

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

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

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

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

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

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

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

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

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

January 9, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, December 27, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 29, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Various prior Second Amendment and gun policy posts:

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

Tuesday, November 19, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 18, 2013

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

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

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

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

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

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

Monday, October 21, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, October 17, 2013

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

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

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

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

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

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

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

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

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

Tuesday, October 15, 2013

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

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

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

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

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

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

Monday, October 14, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 26, 2013

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, August 11, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent related post:

August 11, 2013 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (18) | TrackBack

Monday, August 05, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 22, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 22, 2013 in Examples of "over-punishment", Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (27) | TrackBack

Friday, June 28, 2013

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 28, 2013

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

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

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

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

Thursday, May 16, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

A few recent and older related posts:

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

Monday, May 13, 2013

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

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

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

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

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

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

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

Sunday, May 12, 2013

"Sentencing Bill Could Cost Taxpayers $760 Million Over 10 Years"

The title of this post is the headline of this recent report concerning the projected price tag for a sentencing proposal being discussed as an approach to dealing with Chicago's gun violence.  Here are the details:

A bill designed to reduce gun violence by increasing gun-crime sentences could end up costing Illinois taxpayers hundreds of millions of dollars, according to an investigation by NBC Chicago and The Chicago Reporter.

State Representative Mike Zalewski (D-Riverside) has proposed a bill to increase Illinois’ minimum mandatory prison sentence for gun violators from one year to three years. "We have to make sure individuals are afraid, frankly, of the law, and afraid of the consequences," Zalewski said. "I think three years sets a high bar that if you’re found guilty of the offense, you’re going to face serious consequences. You’re not going to be right back out on the street."

But critics say the bill is nothing more than "political theatre." What’s more, it’s prohibitively expensive, according to opponents like John Maki, Executive Director of the John Howard Association, a local prison-watchdog group. "It’s going to add about 4,000 inmates in about three years," Make explained. "It’s going to explode the budget."

The results of a study done by NBC Chicagos partner, The Chicago Reporter, would seem to support that view. The Reporter analyzed all criminal cases in Cook County Criminal Court from 2000 through 2011, and estimated that it cost taxpayers more than $5.3 billion to imprison Chicago criminals during that period. If those sentencing costs were extrapolated to include the increased prison time resulting from Zalewski’s gun-sentencing bill, The Reporter estimates the bill to taxpayers would have increased by an additional $760 million during that same time period....

As for the potential added expense of these expanded prison sentences, Zalewski is part of a separate discussion in Springfield, aimed at freeing up space in Illinois’ overcrowded prisons. The discussion centers around reducing the number of non-violent offenders — people convicted of such offenses as prostitution or drugs, for example — to make room for these more violent gun offenders.

Discussing this idea and similar gun sentencing proposals making the rounds in other states, Daniel Denvir has this recent commentary in The New Republic.  Its headline captures its themes: "The Worst Gun Control Idea Has Bipartisan Support: Why states should not pass new mandatory minimums for firearm possession."

May 12, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, May 06, 2013

Don't registered sex offenders need gun rights for personal self-defense more than others?

The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits."  Here are excerpts from the lengthy Des Moines Register story,  which is less than fully informative about legal matters, but provides a lot of interesting facts nonetheless:

Joshua Duehr is one of more than 50 sex offenders in Iowa who can carry a gun in public. “I don’t leave the house without one,” said Duehr, who lives in Dubuque.

It’s legal — and it’s news that has surprised some state lawmakers and alarmed a few Iowa and national law enforcement officers.  An FBI official, the president of the Iowa State Sheriffs’ & Deputies’ Association, the president of the Iowa State Police Association and two state lawmakers told The Des Moines Register they have public safety concerns after learning that a two-year-old state law on gun permits allows registered sex offenders to obtain a weapons permit....

Some, if not most, applications by sex offenders for permits to carry weapons would have been denied by county sheriffs before 2011, according to officials from the Iowa Department of Public Safety.  But under a two-year-old state law, sheriffs no longer have discretion to reject such applications.

The law change means people convicted of misdemeanor sex crimes can now walk the streets, malls or virtually any public place in the state while carrying a gun.  Almost all of the sex offenders on the Register’s list were convicted of misdemeanors such as lascivious conduct with a minor or assault with intent to commit sexual abuse.

But the Register found three men convicted of felony sex crimes who had permits to carry weapons in public.  Two of those men had their permits revoked by sheriffs after the Register asked about their situations....

Some sheriffs were aware that sex offenders are carrying weapons in public, primarily because they issue the permits and have firsthand knowledge about the issue.  But other professionals in Iowa’s law enforcement community were caught off guard.

Rob Burdess, a Newton police detective and the president of the Iowa State Police Association, was unaware that sex offenders are being issued weapon permits until he was asked about it by the Register.  He noted that people with felonies or domestic abuse convictions are typically unable to obtain weapon permits, so he questions the logic of allowing sex offenders — even those convicted of non-felony offenses — to carry weapons in public....

[A] review of states surrounding Iowa found that some sex offenders can obtain permits to carry weapons even though authorities said they aren’t aware of a large number being issued.  Those states — including Nebraska, Missouri and Wisconsin — have laws similar to Iowa’s that do not specifically exclude sex offenders from obtaining such permits. Minnesota law, however, makes it a misdemeanor for a person required to register as a sex offender to carry a handgun.

Just as state laws vary, so do opinions about whether armed sex offenders inherently pose more of a risk than other citizens.  Sex offense recidivism rates are much lower than commonly believed, according to legislative testimony given in multiple states by Jill Levenson, an associate professor at Lynn University in Florida.  She is frequently recognized as a national expert on sexual violence....

National uniform crime data from 2006 — the most recent data available — show that about half of all reported sex offenses included a weapon of some form (including the use of fists) but less than 1 percent of all reported sex offenses included the use of a firearm, according to Jason Rydberg, a graduate student at Michigan State.  Iowa numbers mirror the national trend.  Of the roughly 5,750 people on Iowa’s sex offender registry, 47 — or less than 1 percent — used guns in their crimes, according to data from the Iowa Department of Public Safety....

The Association for the Treatment of Sexual Abusers, a national organization focused on the prevention of sexual abuse, generally advocates for cases to be reviewed individually when assessing if a sex offender is likely to reoffend or jeopardize public safety.  “There’s no blanket way of stating that sex offenders are more dangerous than everybody else,” said Maia Christopher, executive director of the association.

Iowa Rep. Clel Baudler, R-Greenfield and a former state trooper, isn’t reassured by the type of research offered by Levenson or groups like the Association for the Treatment of Sexual Abusers.  Until he was contacted for this article, Baudler was unaware that the new gun permit law he advocated for in 2010 has allowed dozens of sex offenders to obtain weapon permits....

An Iowa sheriff may deny a permit to carry a weapon if he believes probable cause exists that the person is likely to use a weapon in a way that would endanger themselves or others.  Those types of denials typically must be based on documented actions from the past two years.  Iowans who believe sheriffs have wrongly rejected their applications for a weapon permit may appeal.  Each appeal, generally reviewed by an administrative law judge, can cost a county government and taxpayers hundreds of dollars....

The cost and the real possibility of losing a case is one reason sheriffs don’t deny permits to carry weapons — even in cases where they have reservations — several sheriffs told the Register.

Washington County in January issued a permit to acquire a weapon to Ronald Nicholis Hahn Jr., who has been on the sex offender registry since 2005 because he was convicted of indecent exposure.  Dunbar said he approved the permit because Hahn passed background checks.  Hahn, 51, said he poses no threat to public safety and that he uses guns for hunting.  “My offense happened seven or eight years ago and it has nothing to do with weapons, so why should I be denied the ability to purchase a gun?” Hahn asked.

Rep. Matt Windschitl, R-Missouri Valley, indicated that he believes Iowa’s new weapons permit law doesn’t need to be revised to specifically ban sex offenders.  People convicted of felonies, including sex offenders, are already prohibited from obtaining a permit, he emphasized. “If their local sheriff does not have probable cause to restrict that person under current law from being able to obtain a permit, then that’s the situation at hand,” said Windschitl, a gunsmith who has advocated for multiple pro-gun bills.

Aggravatingly, this story fails to note that it is a serious federal crime, subject to up to 10 years imprisonment, for any and all persons convicted of a felony or a domestic violence misdemeanor from even possessing a gun. Thus, as the story indirectly notes, only persons without a felony or domestic violence conviction is even lawfully able to possess a gun, let alone get a lawful state permit for one. (I find notable that somehow three sex offender felons were able to get an Iowa gun permit, which perhaps highlights the need for background checks on how good current background checks are in the permit-issuance process in Iowa.)

More to the point of the question in the title of this post, if we think the Second Amendment right to bear arms is linked in some important and significant way to the natural right of personal self-defense (as Heller suggested), a reasonable claim might be made that it would be uniquely unconstitutional to deny gun permits to otherwise eligible persons on a state sex offender registry. There has long been considerable anecdotal evidence of considerable vigilante violence directed toward persons based simply on their presence on a sex offender registry. Given the history of private violence directed toward sex offenders — not to mention the possibility that local law enforcement might not be too quick to come to the aid of someone they know is a registered sex offender — I can fully understand why Joshua Duehr and other low-level registered sex offender might be afraid to move around in public without packing heat to potentially aid any efforts to exercise their natural right of self defense.

Though I do not fancy myself a Second Amendment expert, I wonder if a state law like Minnesota's  prohibiting misdemeanor sex offenders from having a firearm in constitutional in the wake of Heller and McDonald.  If and when a low-level sex offender in Minnesota or elsewhere could reasonably document a history of serious personal threats of serious violence directed toward him because of his placement on the registry and asserted a genuine belief in his need for a firearm in order to protect himself, could a state really require his name and address to stay on the sex offender registry while also denying him a right to keep and bear arms to defend himself?

May 6, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (90) | TrackBack

Friday, March 22, 2013

Based on new Louisiana constitutional provision, state judge strikes down law criminalizing felon gun posssission

As reported in this lengthy local article from New Orleans, some felons in the Bayou have gotten (for now) some benefit from the modern gun rights movement. Here are the basics:

An Orleans Parish judge on Thursday ruled that the state statute forbidding certain felons from possessing firearms is unconstitutional, in the wake of a constitutional amendment passed last year that made the right to bear arms a fundamental one in Louisiana.  The issue will now go straight to the state Supreme Court, which must decide whether the statute infringes on Louisiana citizens' now-enhanced right to gun possession.

Orleans Parish Criminal District Court Judge Darryl Derbigny on Thursday dismissed the charge against one felon, but took his decision a step further than another judge faced with a similar decision earlier this month.

Derbigny ruled that the entire statute -- RS 14:95.1 -- was unconstitutional after voters last year approved by a sweeping majority a constitutional amendment backed by the National Rifle Association. That bill made gun ownership a "fundamental right," on the same level as freedom of speech or religion. A court interpreting any law restricting a fundamental right -- as gun ownership is now considered -- must approach it with "strict scrutiny," the highest level of judicial scrutiny.

Before Jan. 1, questions of gun rights were considered with "rational scrutiny," which allowed regulations to "protect the public health, safety, morals or general welfare." But strict scrutiny requires that the law is, first, necessary for a "compelling government interest." Then, it must be so narrowly defined as to serve only that interest and, third, be the least restrictive way of doing so.

The Orleans Parish public defenders office challenged the constitutionality of the statute on behalf of a half-dozen clients, all charged with being a felon in possession of a firearm. The attorneys concede that public safety is a compelling interest to bar violent offenders, like murderers or armed robbers, from possessing weapons. But the law also bars people convicted of a number of less obviously violent felonies from possessing guns....

The case before Derbigny involved a 20-year-old man named Glen Draughter who had previously pleaded guilty to attempted simple burglary. Draughter was later caught riding in a car with two other people; a .40-caliber Smith & Wesson was in the backseat and an AK-47 with a 30-round magazine was in the trunk.

Public defenders Jill Pasquarella and Colin Reingold argued that under a strict-scrutiny test, the government must be able to provide compelling data showing that those convicted of crimes like simple burglary prove a heightened threat to society when armed. "There is, simply, no rational basis for stripping Louisianans of their rights ... where they have been convicted of crimes that are wholly unrelated to firearm possession or use," Pasquarella wrote to judges in this and several other cases.

Assistant District Attorney Matthew Payne submitted sociological studies suggesting a link between such offenses and a proclivity toward later violent crime.

But Derbigny on Thursday ruled that the statute infringed on constitutional protections when analyzed under a "strict scrutiny" test required of laws restricting fundamental rights. He wrote that it "is not narrowly tailored to achieve the government's interest."...

Judge Frank Marullo had already ruled in favor of defendants in several similar cases. But he did not declare the statute unconstitutional, saying his rulings applied to specific defendants and the circumstances of their cases. Judge Arthur Hunter is scheduled to hear a similar case later this month.

Payne on Thursday noted that he intends to appeal the decision. When a statute is deemed unconstitutional in its entirety, the appeal skips mid-level appeals courts and is fast-tracked straight to the state Supreme Court for review.

If the Supreme Court sides with Derbigny, and rules that the statute violates the state constitution, the law will be scrapped and the Legislature forced to rewrite it. If the court finds that the amendment makes the gun-possession law unconstitutional, it will also have to decide whether the unconstitutionality is retroactive -- which could jeopardize convictions that occurred before the amendment went into effect....

In the meantime, prosecutions of felons in possession of a firearm will continue on, said Chris Bowman, spokesman for Orleans Parish District Attorney Leon Cannizzaro. In the weeks leading up to the November election, with the gun rights amendment on the ballot, Cannizzaro warned of the possible fallout.

He wrote an op-ed column threatening that it would lead to a "flurry of litigation in which criminal defendants will challenge the constitutionality of current criminal laws regulating gun possession."

The nonpartisan Bureau of Governmental Research also urged voters to defeat the constitutional amendment, saying it "would expose the public to unnecessary risks and hamper law enforcement efforts" and adding: "There is no good reason to enter this uncharted territory." Gov. Bobby Jindal wrote an op-ed too, but his exhorted voters to pass the amendment, which he described as "an ironclad guarantee of freedom here in Louisiana."

In a prepared statement Thursday, the Jindal administration said: "We disagree with the judge's ruling. The amendment passed last session is not in conflict with Louisiana or federal law barring felons from owning guns."

Cannizzaro's office, meanwhile, offered an "I told you so" statement. "District Attorney Cannizzaro predicted that the passing of this amendment would cause prosecutors across the state to go to court and defend the constitutionality of 14:95.1," Bowman said Thursday.

Some related Second Amendment and gun policy posts:

March 22, 2013 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (4) | TrackBack

Monday, March 18, 2013

Should NRA care more about gun rights for non-violent felons or those accused of domestic violence?

The question in the title of this post is prompted by this lengthy new front-page New York Times article headlined "Ruled a Threat to Family, but Allowed to Keep Guns." Here is an excerpts from the first part of the article:

[I]n one of a handful of states, the protection order would have forced [an abusive husband] to relinquish his firearms.  But that is not the case in Washington and most of the country, in large part because of the influence of the National Rifle Association and its allies.

Advocates for domestic violence victims have long called for stricter laws governing firearms and protective orders.  Their argument is rooted in a grim statistic: when women die at the hand of an intimate partner, that hand is more often than not holding a gun.  In these most volatile of human dramas, they contend, the right to bear arms must give ground to the need to protect a woman’s life.

In statehouses across the country, though, the N.R.A. and other gun-rights groups have beaten back legislation mandating the surrender of firearms in domestic violence situations.  They argue that gun ownership, as a fundamental constitutional right, should not be stripped away for anything less serious than a felony conviction — and certainly not, as an N.R.A. lobbyist in Washington State put it to legislators, for the “mere issuance of court orders.”

That resistance is being tested anew in the wake of the massacre in Newtown, Conn., as proposals on the mandatory surrender of firearms are included in gun control legislation being debated in several states.

Among them is Washington, where current law gives judges issuing civil protection orders the discretion to require the surrender of firearms if, for example, they find a “serious and imminent threat” to public health.  But records and interviews show that they rarely do so, making the state a useful laboratory for examining the consequences, as well as the politics, of this standoff over the limits of Second Amendment rights.

By analyzing a number of Washington databases, The New York Times identified scores of gun-related crimes committed by people subject to recently issued civil protection orders, including murder, attempted murder and kidnapping.  In at least five instances over the last decade, women were shot to death less than a month after obtaining protection orders. In at least a half-dozen other killings, the victim was not the person being protected but someone else.  There were dozens of gun-related assaults like the one Ms. Holten endured.

The analysis — which crosschecked protective orders against arrest and conviction data, along with fatality lists compiled by the Washington State Coalition Against Domestic Violence — represents at best a partial accounting of such situations because of limitations in the data.  The databases were missing some orders that have expired or been terminated.  They also did not flag the use of firearms in specific crimes, so identifying cases required combing through court records....

In some instances, of course, laws mandating the surrender of firearms might have done nothing to prevent an attack.  Sometimes the gun used was not the one cited in the petition. In other cases, no mention of guns was ever made.  But in many cases, upon close scrutiny, stricter laws governing protective orders and firearms might very well have made a difference.

As long-time readers know, I find puzzling and troubling that the NRA or others are quick to assert or assume that the Second Amendment right to keep and bear arms, if it really is about protecting a truly fundamental constitutional right, that it can be permanently stripped away for any and every felony conviction, even very-long-ago, indisputably non-violent drug possession or white-collar offenses.  This new article reinforces my sense that the NRA's advocacy policies, as well as existing gun laws and practices, are crude and problematic tools now often used to deny gun rights to persons who are not obviously dangerous while sometimes preserving gun rights for persons who are obviously dangerous.

Some related Second Amendment and gun policy posts:

March 18, 2013 in Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (29) | TrackBack

Saturday, March 09, 2013

Interesting developments in "smart gun" discussions and debate

I just came across this notable piece from California on my favorite firearms topic, namely smart gun technologies and policies.  The report is headlined "Personalized guns touted as safety check," and here is how it starts:

In the latest James Bond movie, the hero is given a gun that recognizes the palm of his hand.  Later, when a bad guy snatches the pistol away in a tussle, it won't fire, and Agent 007 lives to die another day.  It may have felt like Hollywood fantasy, but the basic premise is very real — and very dear — to some lawmakers and gun control advocates.

They believe that in the age of smartphones and the aftermath of December's elementary school massacre in Connecticut, the time has come for a marriage of firearms — which have changed little for decades — and modern technology that allows all sorts of devices to be personalized to their user.

President Obama, in the anti-gun-violence plan he introduced in January, directed the attorney general to issue a report on "existing and emerging gun safety technologies."  He also promised prizes to companies that develop the smart guns.

Sensing momentum, state Sen. Mark DeSaulnier, D-Concord, introduced legislation last month that would require all handguns sold in the state to be "owner-authorized."  Under the bill, which is similar to one New Jersey passed in 2002, standard guns would become illegal for sale 18 months after the state Department of Justice determines personalized guns are readily available and function well.

The idea is that a gun should be useless if picked up by a child or a suicidal teen or stolen in a burglary.  The weapons would feature biometric technology such as fingerprint or grip recognition, or radio-frequency identification, which is used in employee-access badges and the toll-collection system FasTrak.

The guns could be used only by their owner, who in some cases would have to wear a special watch or ring to be able to fire the weapon.  The firearms could be configured to allow for multiple users, such as family members.

Skeptics of the technology point out that, despite years of research and high hopes, such guns are still not available in the United States.  But that may be changing.

Belinda Padilla, the head of U.S. sales for a German company called Armatix, said the firm plans to sell a .22-caliber pistol in the United States by this summer that works only after its user activates it by entering a five-digit code into a wristwatch.  The watch uses radio waves to communicate with the gun.  "The bottom line is, this exists now," said Stephen Teret, founder of the Center for Gun Policy and Research at Johns Hopkins University, who has followed the progress of personalized guns for years.  "The question isn't one of technological feasibility anymore, but one of policy."

No one doubts the tough politics around personalized guns, which have been studied and debated for more than two decades.  Many gun owners oppose them, saying they fear the technology will fail them in a pinch.  A major gun control group, the Violence Policy Center in Washington, D.C., also opposes the idea, arguing that personalized technology would save few lives, distract from more important efforts, and give a false impression that guns are safe, perhaps driving new sales.

Brandon Combs, who heads the Calguns Foundation, a gun rights organization, said personalized guns aren't close to being marketable or reliable.  Even if they were, he said, a law mandating their sale would make guns much more expensive and difficult to use, infringing upon the constitutional right to bear arms. "We're creating laws now for a possible future that may or may not ever come to fruition, and to me that's silly," Combs said.  "The reality is this would do nothing but create another opportunity for California to ban handguns and make them expensive for people."

A few recent and older related posts:

March 9, 2013 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (3) | TrackBack

Friday, March 01, 2013

Procedural rules now blocking efforts to undo convictions of federal defendants who are legally innocent

As reported in this new USA Today piece, headlined "Federal judge refuses to release innocent prisoners," a number of procedural issues are getting in the way of undoing federal convictions of defendants that the US Justice Department now recognizes are legally innocent.  Here are the details:

Even the federal prosecutors who put Gordon Lee Miller in prison couldn't get him out.  U.S. Justice Department lawyers took the unusual step in December of asking a federal judge to throw out Miller's conviction and free him because, they said, he had not actually broken the law.

But the judge's answer was still more unusual: No. 

The judge's ruling against Miller is among the latest in a handful of court decisions blocking — at least temporarily — efforts by defense lawyers and prosecutors to overturn convictions in hundreds of cases in which the Justice Department agrees that people were sent to prison improperly because of a misunderstanding of federal law. The decisions raise for the first time the prospect that scores of prisoners still waiting for courts to decide their cases might remain locked up.

"It's very frustrating," said Chris Brook, legal director of the ACLU of North Carolina, which has been tracking the cases.  "These are cases where everybody is on the same page. The government and the defense agree.  The only one standing in the way is the judge."  Miller finished his prison sentence while the case was being decided, but still must serve three years on supervised release.

The legal dispute stems from a misunderstanding about which North Carolina state convictions were serious enough to make having a gun a federal crime.  A USA TODAY investigation last year identified 60 people who had been sent to prison on gun charges even though an appeals court later determined that it was not illegal for them to have a gun.  The Justice Department had initially asked courts to keep the prisoners locked up anyway, but dropped that position last year "in the interests of justice," and is now asking courts to let them out.

In response, judges have so far freed 34 people and taken at least 16 others off supervised release, court records show.  A Justice Department review last year identified 175 others in the smallest of the state's three judicial districts who are entitled to be released or have their prison sentences reduced.

But this month, U.S. District Judge Robert Conrad in Charlotte turned down petitions by Miller and another man seeking to have their convictions overturned, even though prosecutors said in court filings that they were "convicted for conduct that we now understand is not criminal." Another judge, Martin Reidinger, has expressed skepticism that he can free five other men, and has asked prosecutors and defense lawyers to prepare additional filings before he makes his decision.

A Justice Department spokeswoman, Allison Price, declined to comment on the specifics of those cases, saying only that "the court is empowered with great discretion and we respect the court's decision."  The department has until next week to tell Reidinger whether it still believes the men can be freed.

Miller was sent to federal prison under a law that bars people from owning guns if they have already been convicted of a crime that could have put them in prison for more than a year.  But Miller's prior North Carolina convictions could have put him in jail for no more than eight months. Conrad — the former chief federal prosecutor in Charlotte — said in a Feb. 15 order that he could not upend Miller's conviction.  Miller, he wrote, was "lawfully sentenced under then-existing law," and an appeals court's 2011 decision that changed that understanding of the law did not apply to cases that were already concluded.

Miller's lawyers, who declined to comment, have appealed Conrad's order.  If an appeals court upholds the decision, it could effectively block other judges from overturning convictions in similar cases that are still pending in federal courts throughout North Carolina.

Related prior posts:

March 1, 2013 in Gun policy and sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, February 11, 2013

Talk in Chicago of increasing mandatory minimum sentences for gun possession

Chicago gunsAs reported in this new local article from Chicago, that city's "mayor, cops and prosecutors are taking aim at Illinois’ gun possession laws — calling for longer mandatory prison terms and 'truth in sentencing'." Here are some of the details of the proposal and the sentencing debate is has started to engender:

Their wish list includes boosting the minimum required sentence for people convicted of gun possession from one year in prison to three years. They hope to increase the minimum sentence for felons caught with guns from two years to three years.

They also want everyone convicted of felony gun possession to be required to serve 85 percent of their sentences. Now those inmates must complete only half their terms — and sometimes much less after earning “good time” in prison.

Cook County State’s Attorney Anita Alvarez said the proposed reforms would deter more people from carrying guns illegally and would help curb violence. “The guys who are doing the shootings would be away from the corners for a longer time,” Alvarez said in an interview.

Mayor Rahm Emanuel, whose office drafted the legislative proposals, is expected to announce them Monday with Alvarez and other officials. “Criminals continue to escape with minor sentences for possessing and using firearms,” Emanuel said in a prepared statement.

For months, police Supt. Garry McCarthy has proposed lengthening the mandatory sentence for gun possession to three years, pointing to New York City, where he was once a high-ranking cop. The state of New York passed a 3½-year mandatory minimum sentence for illegal gun possession in 2007. The following year, NFL star Plaxico Burress was arrested after a handgun he was carrying accidentally discharged and shot him.

Burress pleaded guilty to a lesser offense and was hit with a two-year jail term, drawing national attention to New York City as a place that cracks down on illegal gun possession. Criminologists point to the mandatory gun sentence in New York as one of the reasons for the Big Apple’s continuing decline in violent crime.

Chicago — whose murder tally rose 16 percent to 506 last year — has about three times as many murders per capita as New York. Also, about 85 percent of murders in Chicago involve a gun, compared to about 60 percent in New York.

While the cops and prosecutors in charge of locking up criminals support lengthier sentences, one judge said the General Assembly — and the public — need to think hard before making the gun laws harsher. “As a taxpayer of this state, I would hope the legislators are cognizant that creating mandatory minimum sentences creates a financial consequence to the state,” said Cook County Judge Nicholas Ford.  “A lot of judges bristle at mandatory minimum sentences.  It’s not my position to question it.  It’s my job to enforce whatever the legislature forwards me.

“But for a person who’s never been convicted of a felony, for a person who’s never committed a violent crime, for a taxpayer who’s never had any problems with the law, I wonder about that,” Ford said.

Alvarez responded that few people without criminal backgrounds are charged with felony gun possession in Cook County.  “You will see that once in a while, but that is when our discretion [as prosecutors] comes into play in charging and in looking at cases once they’re in the system,” she said.

Supporters of mandatory minimum sentences say they also provide a predictable outcome. Indeed, a Chicago Sun-Times examination found wide disparities in how often Cook County judges put people behind bars for gun possession before mandatory minimum sentences fully took effect in early 2011.

Ford, for example, sentenced 42 defendants for gun possession and sent about 76 percent to prison. About 21 percent received probation and 2 percent went to boot camp. The length of his average prison sentence was almost two and a half years. Judge Michael Brown, meanwhile, sentenced 45 defendants. About half went to prison, 23 percent received community service, 18 percent probation and 5 percent boot camp. But the length of his average prison sentence was more than three years.

Overall, Cook County judges sent nearly three-quarters of such defendants to prison for an average sentence of almost two and a half years.  About 14 percent got probation, 6 percent boot camp and 4 percent community service.  The newspaper studied 2011 sentencing outcomes in felony gun possession cases that didn’t include other types of crimes.

Many of those cases involved 2010 arrests, which didn’t apply to the mandatory minimum sentences that took effect in 2011. A separate law that took effect in late 2009 requires a minimum sentence of three years for gang members convicted of carrying a loaded gun.

The Sun-Times analysis found that judges sometimes sentenced defendants to Cook County boot camp — a four-month program with eight additional months of strict supervision. Ford called boot camp a “really solid disposition” for younger defendants without a felony record or violent background.

But Alvarez said she doesn’t think judges should have the option to sentence such defendants to boot camp. “It’s not ‘pen’ time,” she said. “I think the law is clear that they should not be giving boot camp, but judges see it a different way.”

Alvarez said she’s considering discussing the matter with Cook County Chief Judge Timothy Evans and “seeing if there’s something we need to change legislatively — or litigate it.” As Alvarez and other politicians pursue tougher gun laws, one man convicted of illegal gun possession surprisingly said they’re right.

Matthew Munoz, 24, was arrested in 2011 after he and his pals got into a squabble with rival gang members on the South Side.... Munoz was eligible for probation because his crime happened in 2010, before the one-year mandatory minimum took effect. He was sentenced to two years’ probation, but after one year he messed up when he tried to foil a drug test.

Munoz was sent to prison. But because he got credit for time he spent in the Cook County Jail, he said he spent only one day at Stateville Correctional Center. “It’s called ‘dress in and dress out,’ ” he said.

Munoz is now on parole, which he vows to complete successfully. He plans to go to school and get a job. “Some people need prison to learn their lesson,” Munoz said. “I wish I got sent to prison a long time ago. I kept getting probation for this and that. . . . Chicago is getting out of control with the gang violence. They should send those guys to prison — even guys like me.”

As serious sentencing fans know well, and as this article helps highlight, mandatory minimum sentencing laws do not really mandate prison for all offenders.  Rather, they mostly serve to transfer the discretion as to which offenders go to prison from judges to prosecutors. 

If there is good research indicating that this transfer of discretion in the gun crime settings help to reduce illegal gun use and gun violence, I can understand why folks in Chicago and elsewhere think increased mandatory minimums should be a needed response to gun crimes and gun violence.  But, as lots of research and experience reveals in the federal system and elsewhere, having prosecutors as exercising the most sentencing discretion via mandatory minimums tends to increase sentencing disparities, not ensure that similar defendants always receive similar sentences.

Recent and older related posts:

February 11, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

Friday, February 08, 2013

"What the Gun Lobby and the Marijuana Lobby Have in Common"

The title of this post is the headline of this new commentary by Andrew Cohen at The Atlantic.  It gets started this way:

Last week, I took a glancing look at some of the most dubious gun measures creeping up from state legislatures all over the country since the beginning of the year. The statutory text may differ from state to state, but the theme of those post-Newtown proposals are essentially the same: Under the banner of federalism, expressing alarm at federal power, earnest lawmakers are seeking to use new state laws to prevent law enforcement officials from enforcing existing (and future) federal gun regulations.

At the same time, also in the last five weeks, lawmakers in at least 18 states -- more than one-third of the nation -- have proposed dozens of new marijuana laws that would dramatically alter the way millions of people interact with pot.  Again, the details differ from bill to bill.  But, again, the underlying theme is familiar: Under the banner of federalism, expressing disdain with federal power, earnest lawmakers are seeking through these measures to erode the scope of federal law, which still classifies marijuana as a dangerous drug that is illegal to sell or possess.

The new generation of gun laws, which run directly counter to national public opinion, is rooted in the fealty of state lawmakers to the 10th Amendment, to the 2nd Amendment, to gun industry lobbyists and to its tribune, the National Rifle Association.  And these measures, if passed, would be patently unconstitutional.  You can amend or repeal a federal statute, in other words, including of course a federal gun regulation, but as a state lawmaker you cannot seek to punish federal officials who are trying to enforce it.

On the other hand, the new generation of marijuana laws, which represent growing national support for reasonable reform, is a direct result of the stunning election success last November of two legalization measures in Colorado and in Washington.  These measures, too, on their face, violate federal marijuana law.  And, ultimately, either the federal law will have to change, or these state laws will have to change.  That change isn't likely to come first from the courts.  It's going to have to come from lawmakers, from Congress, and the White House.

February 8, 2013 in Gun policy and sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 22, 2013

More proof mandatory sentencing laws are never really mandatory and can enhance disparities

Guns-prison5One typical argument for mandatory sentencing provisions, whether in the form of statutory minimums or rigid guideline structures, is that they ensure all persons who commit a certain kind of crime will be sure to get a certain kind of sentence. But even if one believes such one-size-fits-all approach to sentencing can be justified normatively in some settings, real-world evidence reveals again and again and again that criminal justice actors will devise various ways (some hidden, some in the open) to avoid consistent application of these mandates. The latest proof of this reality appears in this lengthy article from yesterday's New York Times, which is headlined "Prison Isn’t as Mandatory as State’s Gun Laws Say." Here are excerpts:

The last time New York State’s gun laws were tightened, Mayor Michael R. Bloomberg rolled out a graphic reminder of what would happen to anyone caught carrying a loaded, illegal weapon. “Guns = Prison,” public service posters proclaimed categorically.  In 2006, the mandatory prison sentence was increased to 3.5 years from 1 year.

Five years later, though, that equation seemed decidedly more equivocal.  In 2011, the latest year for which sentencing statistics are available, fewer than half the defendants who had been arrested for illegal possession of a loaded gun in New York City received a state prison sentence, according to an analysis of criminal justice statistics by the mayor’s office.  In the Bronx, as few as 31 percent were imprisoned. In Brooklyn the rate was 41 percent; in Staten Island it was 47 percent; in Manhattan it was 68 percent; and in Queens it was 76 percent.

Still, the proportion of defendants sentenced to prison represents an improvement over previous years, said John Feinblatt, the mayor’s chief policy adviser and criminal justice coordinator.  “Before the new law in 2006, which required anyone convicted of felony possession of an unlicensed loaded gun to serve three and a half years, the prison rate was 28 percent,” he said.  “We’ve made a lot of progress.”

But the fact that only half the suspects arrested wind up in state prison also demonstrates that the prerogatives of prosecutors and judges still create a lot of wiggle room, particularly in cases that are weaker or have mitigating circumstances.   Mr. Feinblatt said the laws had what he called a “gigantic loophole”: prison sentences are mandatory except where the interests of justice would dictate otherwise. “You could drive a Mack truck through that,” he said.

Sometimes, he said, prosecutors reduce the charges appropriately as a result of plea bargaining, which spares the time and expense of going to trial in a marginal case, as when a weapon is found in a car carrying several people and it is difficult to prove who had physical possession, or the seizure is subject to constitutional challenges over its reasonableness.  In pressing for a stricter assault weapons ban last month, Gov. Andrew M. Cuomo said the law had “more holes than Swiss cheese.”

Even some of the more stringent assault weapons provisions rushed through the Legislature last week, while raising minimum penalties, have left some prosecutors puzzled.  For example, the new law says those penalties “shall” be imposed, not “must be.”  The law also leaves some latitude if a judge, “having regard to the nature and circumstances of the crime and to the history and character of the defendant,” finds that meting out consecutive sentences for multiple offenses “would be unduly harsh and that not imposing such sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.”

Richard A. Brown, the district attorney in Queens, has taken the word “mandatory” more literally.  “The statistics bear out the effectiveness of the supply-and-demand strategy that we have been following for some time here in Queens,” he said.  “On the one hand, we aggressively go after the gun supply by going after those who traffic in illegal weapons, and on the other hand we concentrate on controlling the demand for illegal guns by making it clear that if you illegally possess a gun in Queens County, there is a very strong likelihood that you are going to state prison.”...

The ratio of arrests to prison sentences is only one measure of the law’s effectiveness.  By another measure, of the 448 defendants sentenced in New York State in 2011 after conviction on the top illegal gun possession charge, 437 received a term of at least three and a half years.  That same year, 3,018 people were arrested on that charge in the state. State Division of Criminal Justice Services officials caution that comparisons between arrests and convictions can be imprecise because not all the cases are adjudicated in one calendar year.

Steven Reed, spokesman for the Bronx district attorney, said the comparison of arrests and prison sentences of three and a half years also did not account for the number of shorter prison sentences imposed after guilty pleas, or after the many convictions in the cases that prosecutors chose to try.  “When those numbers are included, the incarceration rate for gun cases in the Bronx is nearly 85 percent,” he said.  (In Queens that rate is 98 percent.)...

Still, Mr. Feinblatt, the mayor’s criminal justice coordinator, suggested that the 50 percent mandatory minimum imprisonment rate remained too low.  “Maybe I can’t answer what should it be,” he said, “but when I look and see that one borough is doing 76 percent, I certainly see what it can be.”

Though a bit confusing in its data reporting, this article still is so very telling as to how the "prerogatives of prosecutors" ultimately determine whether and how mandatory sentencing provisions are applied and how the policies and practices of different local prosecutors can have more profound impact on sentencing outcomes in the shadow of mandatory sentencing laws than any other factor. And the final comment by the mayor’s criminal justice coordinator here is especially telling when he says he "can’t answer what should" be the imprisonment rate for offenders who break a law which is supposed to indicate a legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time.

Though sophisticated criminal justice participants already know this story well, this article provide still more evidence about the real import and impact of so-called mandatory sentencing laws: they dramatically impact the power of prosecutors to control sentencing outcomes and thus increase prosecutors' leverage to shape all prior stages of the criminal justice system. In turn, unless and until the discretionary decisions of prosecutors are subject to greater regulation, scrutiny, accountability and review, mandatory sentencing laws are likely to enhance (and hide from view) sentencing disparites.

January 22, 2013 in Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, January 16, 2013

Sentencing "highlights" in President Obama's new gun control push

Thanks to this helpful piece from the New York Times, which is headlined "What’s in Obama’s Gun Control Proposal," I see that at least a few of the latest idea on gun control coming from the White House involve sentencing matters.  Via the list provided by the Times, here is a partial account of the provisions likely to be of greatest interest to sentencing fans:

Proposed Congressional Actions

• Requiring criminal background checks for all gun sales, including those by private sellers that currently are exempt.

• Reinstating and strengthening the ban on assault weapons that was in place from 1994 to 2004....

• Increasing criminal penalties for "straw purchasers," people who pass the required background check to buy a gun on behalf of someone else.

• Acting on a $4 billion administration proposal to help keep 15,000 police officers on the street....

Executive actions...

• Directing the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks....

• Issuing a presidential memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

• Releasing a report analyzing information on lost and stolen guns and making it widely available to law enforcement authorities.

• Maximizing enforcement efforts to prevent gun violence and prosecute gun crime.

• Issuing a presidential memorandum directing the Centers for Disease Control and Prevention to research gun violence.

• Directing the attorney general to issue a report on the availability and most effective use of new gun safety technologies and challenging the private sector to develop innovative technologies.

As regular readers know, the last listed item here is of particular interest to me because I continue to want to believe that smart gun technologies may be a much more effective and efficient means to reduce gun violence than lots of new prohibitions or increased sentences and other costly criminal justice investments.

Prior related posts following Newton masacre:

January 16, 2013 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (6) | TrackBack

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 (78) | 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 (8) | 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 Gallup.com 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