Monday, July 22, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 28, 2013

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 28, 2013

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

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

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

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

Thursday, May 16, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

A few recent and older related posts:

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

Monday, May 13, 2013

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

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

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

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

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

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

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

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 (76) | TrackBack

Thursday, December 20, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts following Newton masacre:

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

Wednesday, December 19, 2012

"Smart Gun Technology Could Have Blocked Adam Lanza"

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior posts both old and new:

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

Sunday, December 16, 2012

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

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

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

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

Prior posts from way back in February 2008:

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

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

Thursday, December 13, 2012

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

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

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

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

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

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

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

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

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

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