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

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.”

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Paul.||

    "We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte

    If justice isn't outcome driven, I don't know what is!

  • Paul.||

    "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

    Now I know why I could never get a job with the government.

    Find "relief" for defendants "within the law" who are legally innocent.

    If you've determined they're legally innocent, then your work is done. All that's left is to send a notarized memo to the prison which says, "Prisoner [name of prisoner] shall be released immediately, and without further proceedings."

  • ||

    Seriously. How much easier could it be?

  • Bill||

    Fines and possible prison sentences instead of prosecutorial immunity is looking better and better.

  • Mensan||

    I would like to see a system where, when a person is found to have been wrongly imprisoned, the prosecutor is automatically sentenced to prison for a term equal to the time actually served by the person they helped convict.

  • Rich||

    I agree with you in principle, but the prosecutor's term should be the full sentence, not just time actually served.

  • Paul.||

    When America finally becomes a third-world shithole, and some other world power starts putting our leaders on trial for war-crimes violations, you're going to repeatedly hear, "I was just following orders".

  • Apogee||

    "We've got to make sure we follow the law, and people should want us to do that."

    Incarcerating innocent people is most definitely not "following the law"

    The outcome would most likely be a hefty monetary judgement for unlawful incarceration. That's the outcome their worried about.

  • T||

    I would think releasing them immediately would go a long way towards not getting sued.

  • Bill||

    Not sure you can sue the Feds for a lot of things.

  • ||

    Hey the legacy media did something useful.

  • Scott S.||

    That it's the "McPaper" that the print media used to deride (before blogs came around) makes it doubly amusing to me.

  • Rich||

    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.

    With all due respect, WTF do Justice Department officials do?

  • fish||

    I'm guessing that much like SEC employees pornography is involved.

  • ||

    Respect is something earned so I think none is due.

  • Fist of Etiquette||

    Whatever it is, it's good enough for government work.

  • ||

    They spend all day trying to further their career. What else would they do?

  • mad libertarian guy||

    With all due respect, WTF do Justice Department officials do?

    Look for people who are compliant with state law, and SWAT Team them and in send them to prison.

    Send guns to Mexican cartels with no plan to track them so that they can turn around and play the hero by setting up more strict gun laws to combat the issue.

  • gagster||

    I'm sure they do lots of important stuff. Too bad that none of it seems to have anything to do with justice.

  • aelhues||

    "We've got to make sure we follow the law, and people should want us to do that."

    Taken completely out of context, I'd say, of course!

    However, in light of the admitted fact that we're talking about people who are innocent, and incarcerated, it makes no sense when the law is keeping these innocent people behind bars.

  • ||

    "We've got to make sure we follow the law, and people should want us to do that."

    Yeah, except for the part where you didn't fucking follow the law in the first place.

  • Killazontherun||

    You really know how to throw a nut punch, Scott. It's almost like Balko never left.

  • ||

    Well, it WAS Balko they got this from, so....

  • Pagan Priestess||

    Second hand nut punches still hurt!

  • Eduard van Haalen||

    It's about whether courts will correct their own mistakes.

    And I presume that some of these prisoners made plea-bargains, which are devilishly hard to challenge.

  • CE||

    ...looking "diligently" for ways, within the confines of the law, to recommend relief for defendants who are legally innocent...

    law, tyrant's will, same diff...

    What about justice? How about a pardon?

  • Eduard van Haalen||

    "President Obama today threw away his prospects for re-election by granting pardons to several hardened criminals in North Carolina..."

  • Eduard van Haalen||

    "in the swing state of north carolina..."

  • DWC||

    It would really simple if they would just confine themselves to the notion that there can be no crime if there is no victim. Nothing that does not involve a victim could legitimately be called a crime.

  • ||

    You mean, "could NOT legitimately be called a crime."

    I hope.

  • Kochtopussy||

    No... I don't think he did.

  • Pagan Priestess||

    Double negatives, how do they work?

  • Number 7||

    Mr. Kafka, please pick up the white courtesy telephone.

  • IceTrey||

    How can these people even call themselves Americans?

  • Tulpa the White||

    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.

    Maybe they should change the department name.

  • mad libertarian guy||

    The only suitable replacement name I can think of is the Ass-Fuck Department.

  • Pagan Priestess||

    Seconded.

  • James Sinclair||

    "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."

    I've read a lot of appellate court opinions, so I'm pretty used to finding, upon closer inspection, that the central question of law is at least somewhat open to interpretation, even when the holding is reported in a way that makes it seem like it should've been self-evident from the beginning.

    But this? My God, how was this not self-evident from the beginning?

  • Intn'l House of Badass||

    There should not be a Justice Department. It has failed utterly.

  • VG Zaytsev||

    Why is there a federal law making it illegal for a state felon to own a gun in the first place?

    And yeah, what the fuck does is the Department of Justice's job.

  • ||

    "We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte.

    In a just world, this stupid cunt would at least be disbarred. Obviously me and this stupid cunt have differing opinions as to what the word justice means.

  • jacob||

    Justice is blind...

    ...to outcomes

    /s

  • sungosang||

    The US Kangaroo court system is such a joke. Wow.

    www.Anony-Web.tk

  • Seamus||

    I get the part about how people need to follow the rules about when and how defendants can challenge their convictions in court. That said, aren't these obvious candidates for executive clemency? If he had any decency, the president would issue full, complete, and absolute pardons to these convicts. (Which I guess is another way to say they're totally screwed.)

  • ChrisO||

    One of the underlying causes of this problem is the expansion of the federal criminal code into areas more appropriately handled by state law.

    This has been ongoing for over a century. In the 1870s, the federal criminal code was largely confined to treason and military matters--I believe the feds only had one small prison, because it was all they required.

    Making federal criminal law reliant on the vagaries of state law is a recipe for injustice, and indicates that perhaps North Carolina should be the one deciding things like whether felons should be allowed to own firearms.

  • The Galatian||

    America's Hunters. The Salt Light of the World ...

    http://www.galationpress.blogs.....world.html

  • gx3468||

    We wholesale all kinds of ,cheap NFL jerseys which are in high quality.Discount Peyton Manning jerseys for men,women and youth form wholesalercheapnfljerseys.com.We provide custom NFL jerseys which made as your follows.We supply the best service."Did you ever bleed?" Sandusky's defense attorney, Joe Amendola asked later on cross-examination.
    "Yes," the witness said, in a chilling tone so matter-of-fact it was heartbreaking. "I just dealt with it. I have a different way of coping with things."
    http://www.wholesalercheapnfljerseys.com

  • Joel Stoner||

    Actually the state is responsible for notifying someone who is innocent that they are free to go. False imprisonment is a crime, even if it is done by the state. Many people have successfully sued the state or city who put them in prison when they were found to be innocent at a later time. Besides the fact that i do not agree that being a felon should remove any rights, and no law can remove rights from a person. Rights can be waived, rights can be declined by the individual, but any law trying to remove rights is invalid under the constitutional supremacy clause.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement