Wednesday, December 19, 2012

"Smart Gun Technology Could Have Blocked Adam Lanza"

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior posts both old and new:

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

Sunday, December 16, 2012

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

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

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

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

Prior posts from way back in February 2008:

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

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

Thursday, December 13, 2012

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

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

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

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

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

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

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

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

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

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

Tuesday, October 09, 2012

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 20, 2012

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

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

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

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

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

Saturday, July 07, 2012

Documenting the extremes of stacked federal gun mandatory sentences

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 28, 2012

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

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

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

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

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

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

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

Related post:

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

Thursday, June 14, 2012

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

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

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.  Many of them don't even know they're innocent.

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

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

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime.  And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

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

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

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

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

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

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

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

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

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

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

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

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

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

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

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

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

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

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

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

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

June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack

Tuesday, April 24, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, February 24, 2012

"Second Amendment Penumbras: Some Preliminary Observations"

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

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

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

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

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

Monday, January 23, 2012

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

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

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

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

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

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

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

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

Wednesday, January 04, 2012

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

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

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

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

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

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

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

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

Thursday, December 15, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 29, 2011

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

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

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

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

Monday, November 14, 2011

Might restoration of felon gun rights actually reduce recidivism?

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

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

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

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

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

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

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

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

Some related Second Amendment and gun policy posts:

November 14, 2011 in Data on sentencing, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (21) | TrackBack

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Thursday, November 03, 2011

"The Right Not to Keep or Bear Arms"

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

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

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

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

Wednesday, October 26, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 04, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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