For a group of North Carolina prisoners, it’s guilty until proven innocent and even innocence is not enough to guarantee freedom.
A recent USA TODAY investigation revealed that a growing number of men are currently in prison for violating federal gun possession laws, even though courts decided last year that it was not a federal crime for these individuals to have a gun. The U.S. Justice Department is not actively working to identify and notify the affected men, leaving many of these prisoners unaware of their innocence. And, while federal public defenders are working to alert these prisoners of their wrongful convictions, legal procedure could prevent many from being released.
“While the Justice Department essentially agrees that these individuals are substantively innocent, they are trying to challenge these cases procedurally,” said Devon Donahue, an assistant federal defender in North Carolina’s Eastern district.
This complicated situation is a product of conflicting state and federal laws. In 1968, Congress made it a federal crime for felons to possess a gun under any circumstances. Congress later defined a felon as anyone convicted of a crime that could receive a sentence of more than a year in prison. But North Carolina’s structured sentencing system complicates who can be labeled a felon by basing the maximum sentence of a crime on the extent of the offender’s prior criminal record.
Before 2011, federal courts in North Carolina maintained that the structured sentencing system should essentially be ignored when deciding who can be convicted in violation of federal gun laws. The courts said that if anyone could be sentenced to more than a year in prison for a specific crime, then everyone who had committed the crime was considered a felon.
However, in August of last year, the U.S. Court of Appeals for the 4th Circuit rejected that definition. In its decision in United States v. Simmons, the 4th Circuit embraced North Carolina’s structured sentencing system and ruled that only people with criminal records serious enough to garner a sentence of more than a year in prison were considered felons under federal law.
In light of this decision, tens of thousands of people in North Carolina are no longer considered felons. While the exact number of individuals wrongly convicted for possessing a gun as a felon is unknown, just the USA TODAY investigation identified more than 60 men who are now legally innocent.
The U.S. Department of Justice is not actively investigating these cases or finding others who are now considered wrongfully convicted. While Anne Tompkins, the U.S. attorney for the Western District of North Carolina, says that the department is “now looking diligently for ways, within the confines of the law, to recommend relief for defendants who have been impacted,” the responsibility to examine these cases has been transferred to federal public defenders.
“In those cases that are final and the defendants are in prison, our U.S. District Court has issued an order appointing counsel to those defendants seeking Simmons relief,” said Tompkins in an e-mail. “Pursuant to that order, we have responded, and will continue to respond to all motions filed and agree to relief on a case by case basis where appropriate.”
While the Department of Justice maintains its commitment to finding legal remedies to the situation, it has worked to block the release of those who remain in prison. When one prisoner petitioned to vacate his conviction and sentence, the U.S. Justice Department said that legal innocence does not change the “factual underpinnings” of the case in its efforts to dismiss the prisoner’s motion.
Not everyone finds this argument convincing. Emily Hughes is a law professor at the University of Iowa who represented clients on misdemeanor and felony charges as a Sacks Fellow at Harvard Law School’s Criminal Justice Institute. Hughes does not see this as a clear case of distinguishing between legal and factual innocence.
“Yes they had a gun,” said Hughes. “But the charge against them is that they were a felon in possession of a gun, and since they weren’t felons, they might be factually innocent.”
The Justice Department has also embraced legal procedure in its attempts to challenge these cases. According to Donahue, the Department often claims that a prisoner’s petition is outside the one-year statute of limitations or that the individual gave up the right to challenge his conviction by pleading guilty.
Despite this, federal public defenders are working to identify and inform those individuals who could be victims of wrongful conviction. In North Carolina’s Middle District, public defenders are contacting prior clients who are now legally innocent yet still serving sentences, approximately 500 individuals in prison and 150 on supervised release.
However, unlike courts in North Carolina’s Eastern and North Districts, the court in the Middle District has not entered a standing order that appoints federal public defenders to represent defendants with Simmons claims. Therefore, public defenders in this district are unable to take any legal action beyond notifying the 650 affected prisoners.
Regardless of the numerous complications, Donahue says that her office in the Eastern District remains optimistic.
“Right now, we have over 120 cases on the pipeline,” said Donahue. “But this number is expected to grow as new cases come on a weekly basis.”
Despite the developing caseload, procedural obstacles continue to impede the possibility that these individuals will be released from prison, and some believe this could have a negative impact on the public perception of the U.S. legal system.
“This situation has the potential to focus the public’s perception on the fact that there is a certain ambiguity in the law in that someone who is innocent has to serve time for a crime they didn’t commit,” said Hughes. “With procedural due process, if people feel they have had a fair chance through the system, then people are willing to accept their conviction. But when the process isn’t fair, it turns everything on its head.”