Opinion

Not Being a Felon Is Not Enough to Avoid Going to Federal Prison for Being a Felon in Possession of a Gun

Prison

This article first appeared at Reason.com and Reason magazine.

Following some lengthy, in-depth investigative work, USA Today has discovered more than 60 North Carolina men serving federal sentences for violating gun laws it turns out they didn’t actually violate:

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.”

Hat tip to Radley Balko, who tweeted that horrifying, eye-catching quote from Tompkins. Of course, prosecutors are never “outcome driven” when they’re trying to throw defendants into prison, are they?

North Carolina’s unusual sentencing system is partly the cause of the problem. In order to try to standardize a federal law forbidding gun ownership by felons, the U.S. government needed to craft legislation that accounted for different states’ definitions of felonies. They settled on a law that made it illegal for a person to own a gun if they commit a crime that could have landed them a year or more of prison time:

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.

Read through the story for the case of Terrell McCullum, a minor criminal who ended up in federal prison for possessing a firearm. Even his own lawyers thought he had broken the law due to a previous conviction for gun theft. (He’s not exactly the most sympathetic case. After a supervised release, he ended up back in jail for robbery and can probably no longer be considered a minor criminal.)

Whether McCullum — or the dozens of others like him — 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.

So apparently misapplying the law in the first place doesn’t count as “new evidence.”

Image: Tim Pearce from the flickr Creative Commons

Any views or opinions expressed in this article are those of the author and do not reflect those of OutdoorHub. Comments on this article reflect the sole opinions of their writers.
  • 2nd amendment

    I know it is an unpopular point but, the second amendment guarantees the right to keep and bare arms. It does not have a clause that says unread you are a convicted felon. So, how can a law be written that circumvents the constitution?

    • 2nd amendment

      That is supposed to say “unless” not “unread”.

    • 2nd amendment

      That is supposed to say “unless” not “unread”.

    • badman400

      Unfortunately, our Constitution is being circumvented every day by the dark masters who own our politicians and the media. The richest 700-800 people in our world essentially own us all. They print our currency, they create and burst economic bubbles at will to maximize their profits and escalate their control.

  • 2nd amendment

    I know it is an unpopular point but, the second amendment guarantees the right to keep and bare arms. It does not have a clause that says unread you are a convicted felon. So, how can a law be written that circumvents the constitution?

  • http://twitter.com/nativist America’s Native Son

    federal judge in chicago upheld the right of a man convicted of carrying, and denied a Chicago handgun permission slip, to carry a gun to defend himself. The judge declared the Chicago law too vague, and denied the man the right to defend himself under the constitution. Of course the 4’11” mayor “tiny dancer” Rahm Emanuel said he will amend the law. Stats show more citizens with firearms, less crime, even when Lord Obama was in Chicago for father’s day, there were rcord shootings, while his Air Force 1 and 2 F-16’s did joy rides over the city at 3AM. Its all an Illusion, when the curtain comes back, there wont be a blanket big enough to coverup what the’ve been doing under the heading of Law Enforcement.

  • http://twitter.com/nativist America’s Native Son

    federal judge in chicago upheld the right of a man convicted of carrying, and denied a Chicago handgun permission slip, to carry a gun to defend himself. The judge declared the Chicago law too vague, and denied the man the right to defend himself under the constitution. Of course the 4’11” mayor “tiny dancer” Rahm Emanuel said he will amend the law. Stats show more citizens with firearms, less crime, even when Lord Obama was in Chicago for father’s day, there were rcord shootings, while his Air Force 1 and 2 F-16’s did joy rides over the city at 3AM. Its all an Illusion, when the curtain comes back, there wont be a blanket big enough to coverup what the’ve been doing under the heading of Law Enforcement.

  • chuckwalla

    Obama can “outcome driven” on Fast & Furious and Immigration, but freeing people unjustly convicted? Well…..

  • chuckwalla

    Obama can “outcome driven” on Fast & Furious and Immigration, but freeing people unjustly convicted? Well…..

  • fortrat

    So, it looks like the root of the problem is that North Carolina is either cheap or lazy, and turns their crime problems over to the federal government rather than taking care of it themselves. If these people broke state laws, they should be tried, sentenced, and housed in state facilities. The feds should not even be involved. NC is just passing the buck.

  • badman400

    The prison industry is now privatized and is a BUSINESS! Like a motel/hotel, the more people occupying the cells, the more hard earned tax dollars the prison owners can pull from the pockets of the taxpayers! And the politicians and police are most likely seeing a share of the money that is made with higher occupancy. Just an opinion.

    • actionjksn

      No that’s not an opinion. That is a fact. This country has made so many things a crime that they don’t even know for sure how many things are an actual crime. I think the estimate is that somewhere around 4000 things are a crime that you can go to prison for. Think about that for a moment.

  • http://www.facebook.com/DJStuCrew Stu Chisholm

    If the law was misapplied in the first place, the convictions should simply summarily be overturned.

  • PatriotSpirit76

    Federalism is dead. Your state doesn’t have to acknowledge an illegal Federal law regulation demand if Congress was never given the power to enact it in the Constitution. What do you think the odds of that are going to be? About the same as people who committed no crime getting their rights acknowledged under the current non-republic we live in.

    But guess what? We’re ALL to blame for letting the laws that “protect us” get through a system that should have left well enough alone. Check out the Lautenburg Amendment, that makes “misdemeanor crimes of domestic violence” into a felony if the person convicted is in possession of a firearm after the conviction. (Ever yell at your wife or kids?) http://www.firearmscoalition.org/index.php?option=com_content&view=article&id=353%3Ascotus-backs-lautenberg&catid=44%3Aspecial-report&Itemid=1

    Of course this is where the Gun CONTROL Act of ’68 was headed to begin with.

  • CavScout62

    More out of control PORK and COURTS. NAZI’S for Cops and the SD for JUDGES all courtesy of our Federal Govt. Welcome to the USSA.