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One Year After Simmons: ACLU Sends Letter to DOJ to Help Release People Wrongly Languishing in Federal Prisons

By Jesselyn McCurdy, ACLU Washington Legislative Office at 2:53pm

Yesterday, USA Today reported on a letter the ACLU sent to top officials at the Department of Justice, urging immediate action to identify and possibly release dozens of wrongfully imprisoned federal inmates.

The ACLU’s letter is a follow-up to a June 14 front-page story also published in USA Today that exposed what many in North Carolina have known for almost a year: there are still dozens and possibly thousands of people wasting away in federal prison due to wrongful “felon in possession of a firearm” charges, along with other unjust sentences due to mandatory minimums or “career offender” guidelines enhancements, despite a U.S. Court of Appeals decision in United States v. Simmons which should have fixed that. The Simmons decision explained that the legally correct definition of “predicate felony conviction” under federal law is when someone has been convicted of a prior offense for which he could have received over one year in prison. If not, they are not predicate felons for purposes of charging and sentencing under federal law.

In the U.S. it is illegal for people with felony convictions to be in possession of firearms. But the ACLU estimates that as many as 3,000 people prosecuted in North Carolina have been unjustly sentenced under federal provisions that turn on whether the defendant has a prior conviction for a crime punishable by more than a year of imprisonment, even though they had not previously been convicted of crimes that qualified as federal felonies.

Even more disturbing, the U.S. attorneys’ offices in North Carolina are aware of the situation and have even acknowledged it in court filings – but rather than initiate a coordinated effort to identify and assist people serving wrongful sentences, in many instances they actually opposed defense attorneys’ efforts to free their clients.

For example, Terrell McCullum was sent to prison for the crime of being a felon in possession of a gun – even though his prior crime was not classified as a felony under federal law. Everyone agrees that McCullum did not commit the federal crime of being a felon in possession of a firearm, yet he is still in prison for this crime he did not commit.

This ongoing injustice has to stop. In its letter, the ACLU requested that DOJ issue comprehensive guidance to prosecutors immediately to identify and assist inmates, like McCullum, whose convictions and sentences are erroneous based on the Simmons decision. It is critical that the DOJ address this matter immediately, particularly because Simmons was decided on August 17, 2011 – nearly a year ago – and yet hundreds of people who are erroneously charged and/or sentenced as predicate felons still languish in prison.

The DOJ has a responsibility to ensure people like Terry McCullum, serving time for mistaken convictions, will not serve another erroneous day in prison.

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