Thursday, September 29, 2011

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

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

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

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

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

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

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

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

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

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

A few related posts:

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

Saturday, September 24, 2011

"Should pardoned felons have gun rights?"

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

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

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

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

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

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

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

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

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

Tuesday, September 20, 2011

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

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

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

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

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

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

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

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

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

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

Tuesday, July 12, 2011

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

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

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

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

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

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

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

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

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

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

A few related Second Amendment posts:

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

Friday, July 08, 2011

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

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

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

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

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

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

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

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

Some related posts on the Burress cases:

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

Thursday, June 30, 2011

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

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

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

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

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

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

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

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

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

Saturday, June 11, 2011

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

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

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

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

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

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

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

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

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

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

Monday, June 06, 2011

"Plaxico Burress released from prison"

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

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

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

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

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

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

Thursday, May 19, 2011

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 04, 2011

Two notable new empirical pieces on sentencing realities via SSRN

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

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

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

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

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

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

Sunday, April 17, 2011

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

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

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

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

Sunday, April 10, 2011

Baltimore gun offender registry declared unconstitutional as operated

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 04, 2011

"Medical marijuana users fight for gun rights"

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

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

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

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

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

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

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

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

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

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

Wednesday, March 16, 2011

Eleventh Circuit rejects notable ACCA selective prosecution claim

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

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

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

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

Friday, February 11, 2011

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

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

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

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

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

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

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

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

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

Thursday, December 30, 2010

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

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

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

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

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

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

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

A few related Second Amendment posts:

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

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

Tuesday, December 21, 2010

NJ Governor Christie commutes controversial gun possession sentence

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

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

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

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

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

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

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

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

Tuesday, December 14, 2010

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

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

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

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

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

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

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

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

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

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

Friday, November 19, 2010

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

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

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

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

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

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

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

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

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

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

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

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

Related post (which generated lots of comments):

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

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

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

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

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

Thursday, July 15, 2010

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

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

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

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

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

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

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

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

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

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

Monday, June 28, 2010

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

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

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

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

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

Some older posts on the Heller and felon gun rights:

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

Monday, May 24, 2010

Cause for celebration: FBI stats show crime rates dropping again

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, May 17, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 15, 2010

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

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

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

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

Friday, March 26, 2010

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

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

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

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

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

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

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

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

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

Thursday, March 25, 2010

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 23, 2010

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

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

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

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

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

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

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

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

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

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

Monday, March 15, 2010

Guns don't kill people, people kill people ... after cops sell the guns

The cheeky title of this post is inspired by this new story reporting on the backstory of two guns used in two recent high-profile shootings.  The news account is headlined "Memphis police, Shelby sheriff's office sold guns used in high-profile shootings," and here is how it begins:

Two guns used in high-profile shootings at the Pentagon and a Las Vegas courthouse both came from the police and court system of Memphis.

Law enforcement officials told The Associated Press that one of the weapons in the Pentagon attack was seized by Memphis police from a convicted felon in a 2005 traffic stop and later traded to a gun dealer.  And they said the shotgun used in the Jan. 4 courthouse shooting in Las Vegas was sold by a judge's order and the proceeds were given to the Shelby County Sheriff's Office.

In both cases, the weapons first went to licensed gun dealers but later came into the hands of men who were legally barred from possessing them -- one a convicted felon, the other mentally ill.

The use of guns that once were in police custody and then involved in attacks on police officers highlights a little-known divide in gun policy in the United States.  While some cities and states destroy guns gathered in criminal probes, others sell or trade the weapons to get other guns or buy equipment.

In fact, on March 4, the day of the Pentagon shooting, Tennessee Gov. Phil Bredesen signed legislation removing the option of destroying confiscated guns, unless they are unsafe or don't work, and directing that the proceeds of such court-ordered gun sales go to law enforcement instead of a city or county's general fund.

March 15, 2010 in Gun policy and sentencing | Permalink | Comments (4) | TrackBack