Home Judge’s Opinions ACLU protests the lag in releasing 'innocent' prisoners

ACLU protests the lag in releasing 'innocent' prisoners

by Andrew P. Napolitano
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Brad Heath, USA TODAY

The ACLU accused the U.S. Justice Department of "prolonging the incarceration of innocent people" who remain locked up even though the government concedes that they have not committed a federal crime.


October 25. 2012 – The ACLU accused the U.S. Justice Department on Thursday of "prolonging the incarceration of innocent people" who remain locked up even though the government concedes they have not committed a federal crime.

A USA TODAY investigation this year identified 60 people incarcerated on federal gun charges despite a court later determining they had not committed a federal crime. Justice Department attorneys had originally argued that they should remain in prison anyway, but reversed its position in August "in the interests of justice," according to court filings.

Since then, federal judges in North Carolina have ordered the government to release at least 22 inmates, one of the largest episodes in recent memory of federal prisoners having their convictions overturned. At least 10 other former prisoners were freed from supervised release, and dozens of other federal inmates from North Carolina are waiting for a judge to decide whether their convictions must also be invalidated.

But in a letter sent this month to H. Marshall Jarrett, the head of the Justice Department branch that oversees U.S. attorneys' offices, the ACLU of North Carolina said that government lawyers in Charlotte are still throwing up legal roadblocks that have delayed the process. Of the 17 cases in which defense lawyers have alleged that their clients are innocent, the government has dropped its procedural arguments in only five.

"The tragedy of this approach is that it prolongs the unjust incarceration of innocent people," the ACLU wrote. "Unfortunately, this is not the first time that prosecutorial inaction has hindered justice in the wake of Simmons. Although federal prosecutors could have notified the inmates whose convictions or sentences were implicated by Simmons, they never did so. Consequently, the burden of identifying wrongly incarcerated inmates has fallen entirely on defense attorneys."

The ACLU also faulted the Justice Department for not agreeing to relief for dozens of other federal inmates whose sentences were calculated incorrectly because of the same underlying legal error. Government lawyers continue to argue in federal courts that those prisoners cannot challenge the tough mandatory-minimum sentences they faced, a position federal court judges have largely accepted. In some cases, prisoners who should have faced only a few years in prison could be serving 20 or 30 because of the courts' error.

"That stance is intolerable," the ACLU wrote in the Oct. 12 letter, which it made public on Thursday.

"All three U.S. attorneys' offices in North Carolina are working closely with the federal defenders and the courts to establish procedures for the efficient resolution of claims in Simmons cases," Allison Price, a Justice Department spokeswoman, said Thursday. "Each office is devoting substantial resources every day to getting Simmons claims before the courts so that they can be addressed. Hundreds of inmates with potential Simmons claims have been identified and notified, and we are working very hard to ensure that these matters are resolved both quickly and in accordance with established law."

USA TODAY's investigation found that the Justice Department had done almost nothing to identify the prisoners — many of whom did not know they were innocent — and had argued in court that they should remain imprisoned even though its lawyers agreed they had not committed a federal crime.

Federal law bans people from having a gun if they have previously been convicted of a crime that could have put them in prison for more than a year. In North Carolina, however, state law sets the maximum punishment for a crime based on the prior record of whoever committed it, meaning two people who committed the same crime could face vastly different maximum sentences.

For years, federal courts there said that didn't matter. If someone with a long record could have gone to prison for more than a year, then all who had committed that crime are felons and cannot legally have a gun, the courts maintained. But last year, the 4th Circuit Court of Appeals said judges had been getting the law wrong: Only people who could have faced more than a year in prison for their crimes qualify as felons. Its decision meant thousands of low-level offenders are not committing a federal crime by having a gun.

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