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.
Tuesday, January 22, 2013
More proof mandatory sentencing laws are never really mandatory and can enhance disparitiesOne 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.
Wednesday, January 16, 2013
Sentencing "highlights" in President Obama's new gun control pushThanks 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....
• 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:
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
- "Smart Gun Technology Could Have Blocked Adam Lanza"
- "Empirical evidence suggests a sure fire way to dramatically lower gun homicides: repeal drug laws"
Saturday, December 29, 2012
Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicideThis 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:
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
- "Smart Gun Technology Could Have Blocked Adam Lanza"
- "Empirical evidence suggests a sure fire way to dramatically lower gun homicides: repeal drug laws"
- Appreciating blessings — and the limits of laws — this (too violent) holiday season
Thursday, December 20, 2012
"Empirical evidence suggests a sure fire way to dramatically lower gun homicides: repeal drug laws"The 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:
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
- "Smart Gun Technology Could Have Blocked Adam Lanza"
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.
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:
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realities
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
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:
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realitie
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.
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."
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.
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.
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.
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.
Thursday, June 14, 2012
"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws
The 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.
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.
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.
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.
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:
- Big (ugly?) NY Times report on felons getting back gun rights
- "Should pardoned felons have gun rights?"
- Can dismissed domestic violence complaint justify revoking gun permit?
- "Medical marijuana users fight for gun rights"
- North Carolina Supreme Court finds state constitutional right for some felons to bear arms
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Convicted Felon Sues State Over Right To Bear Arms"