News Roundup

There were so many significant and interesting stories this week, it’s hard to decide where to begin. But I’ve settled on this USA Today story about federal inmates serving sentences for possession of a firearm by a felon. The problem? The inmates aren’t really felons, at least not under current federal law. Here’s the short version of the story: 18 U.S.C. § 922 prohibits gun possession by people “who [have] been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” But what’s a crime “punishable by imprisonment for a term exceeding one year”? Consider a Class H felony like PWISD cocaine. Prior to the Justice Reinvestment Act, the presumptive range of minimum sentences for a defendant with prior record level VI was 16-20 months, with corresponding maximums between 20-24 months. The aggravated range, of course, was even higher. But for a defendant with prior record level II, the presumptive range of minimum sentences was 6-8 months, and the corresponding maximums were between 8-10 months. The federal courts used to figure that an offense was “punishable by imprisonment for a term exceeding one year” if any defendant convicted of that crime could receive more than 12 months in prison – that is, if the top of the aggravated range for prior record level VI was more than 12 months. So PWISD cocaine qualified. But in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), the Fourth Circuit ruled that an offense was “punishable by imprisonment for a term exceeding one year” only if the particular defendant could have received more than 12 months, given his prior record level and whether he was eligible for an aggravated sentence.  So PWISD cocaine no longer qualified automatically; in fact, it didn’t qualify for a large number of defendants. For federal cases that were not yet final on direct appeal, Simmons was easy to apply, and defendants whose predicate offenses no longer qualified were released. (Many of them were subsequently prosecuted in state court, where a felony is a felony regardless of sentence length.) But for cases that were already final, things were murkier. To one way of thinking, at least, a significant number of defendants were convicted of something that wasn’t a crime at all. (And others received longer sentences than they would have under current law, under federal statutes that aggravate certain defendants’ sentences based on prior felony convictions.) Did the government have an obligation to identify and notify these people? What procedural tools could these people use to seek relief? Should the time limitations on federal habeas petitions apply? These issues, well-known to those in the federal court community, have now hit the mainstream. WRAL picked up the USA Today’s trail and produced this story, quoting my colleague Jamie Markham. Professor Doug Berman at Sentencing Law and Policy excerpted the article at length and suggested that the Fifth and Eighth Amendments require relief for these inmates even if there is no clear procedural mechanism for granting it. Powerful and interesting stuff.

Also very noteworthy is the legislature’s move to amend the Racial Justice Act. S 416 has passed the House by a veto-proof majority (all Republicans plus five Democrats). The Senate will now take it up, and is widely expected to pass it, also by a veto-proof majority. The current version of the bill would, among other things: (1) require a defendant to show racial discrimination between 10 years before the defendant’s crime and 2 years after the defendant’s trial; (2) require a defendant to show racial discrimination in his own case; (3) limit the scope of the defendant’s proof to the county or prosecutorial district, not the judicial division or the state as a whole; and (4) provide that statistical evidence alone is insufficient to establish discrimination. There’s a lot more that could be said about the bill, how its provisions might be interpreted, and what its effect might be on pending cases, but I will wait to see whether the bill passes, and whether it is modified any further in the process, before offering any thoughts.

This post is already too long, and I haven’t even gotten to most of the stories I’ve collected this week, like the News & Observer’s front-page story today about 25 SBI lab analysts failing their certification exams, and the SBI’s failure to disclose that fact to prosecutors, or, without a court order, to defendants on whose cases the analysts have worked. Also worth checking out: the government has decided not to re-try John Edwards; the State Bar has set a date for hearing misconduct charges against removed Durham DA Tracey Cline; and new economic research proves conclusively that robbing banks is not a rational way to improve one’s income.

Finally, I could not resist this story, concerning a man charged with assault with a deadly weapon. Nothing funny about that . . . except that the deadly weapon in question is wasabi. No word on whether the defendant had a license for the well-known sushi condiment.

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