North Carolina man, Terrell McCullum, recently had his federal gun possession conviction thrown out in mid August 2012.  He is part of a group of individuals that have  wrongfully served years in prison due to the Federal Court’s skewed understanding of a certain federal gun law.

McCullum had prior misdemeanors that, as minor crimes, did not merit more than a year in prison.  In October 2007, a month after he got out of jail for a misdemeanor stolen gun charge, McCullum was moving things out of a girlfriend’s place just after breaking up with her. After they had an altercation, resulting in him pulling a phone cord out of the wall and knocking a table over,  she called the police to keep things under control. Along with the things McCullum was moving out was an unloaded shotgun and rifle. The cop took notice and checked the serial numbers, which showed the guns had been stolen. The officer arrested McCullum on site. However, McCullum said he obtained the guns from his grandfather. And the guns had been stolen when he was only 12 years-old. Still, when they saw his criminal record they mistakenly arrested him as a felon.

Decades ago, it became a federal crime for convicted felons to have a gun. That is, if someone has a previous felony conviction, in state or federal court, they can be federally charged if they are later found in possession of a firearm.  But the question in McCullum’s and many other instances is whether the individual arrested for possessing a gun is even really a felon.

The Federal Court’s mistaken understanding of felons and guns

Generally, misdemeanor crimes carry minor penalties, usually maxing out at no more than one year in jail.  To the contrary, felony sentences carry terms of imprisonment of more than a year, up to life in prison. In North Carolina, however, the length of the sentence is not necessarily a precise tool for determining the offense level for the underlying crime.  For example, North Carolina uses a “structured sentencing” system, which determines the maximum length of a convict’s sentence by considering their past convictions. Thus, for the person who has committed a lot of previous misdemeanors, the hefty rap sheet could get them a sentence on a new misdemeanor for well over the maximum one year in jail, even though such a sentence would not be legally available had that long rap sheet not existed.  In short, under this system, a misdemeanor crime could be compounded by the person’s bad history and turn into more than a year sentence.

So what does this mean for those, like McCullum, with federal felon gun possession charges?  Does the fact that they had previous terms of imprisonment, usually reserved for felony offenses, mean that they were in fact a felon?  Or does the actual classification of their offenses as misdemeanors control the situation?

As you can imagine, the federal courts and the U.S. Attorneys office originally believed the former and misconstrued McCullum as a felon, making him eligible for federal gun charges.  What’s more, dozens of others who were not really felons were also wrongfully charged, convicted, and incarcerated for this bogus federal gun possession offense.  The U.S. Court of Appeals for the 4^th Circuit corrected this misinterpretation last year. Cases that were currently being tried were dismissed and they even reversed convictions on 40 some cases being appealed at the time.

So McCullum got out.  But what about the others  who were wrongfully classified as felons, wrongfully convicted, and now sit in prison.  The authorities should easily be able to identify this group and make sure the jail house doors swing open for them, right?

Well, not exactly.  The feds say that although this group of individuals is “legally innocent,” they are not factually innocent:

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.”

Thus, the government need not lift a finger to get these guys out of prison.  That’s insane.  There is no doubt that McCullum possessed a firearm.  But if that act of possession was not itself a crime because he was not truly a felon, then he is innocent by any definition. The admission that this group of individuals is innocent but that they have to rot in prison because the United States government is without any power or mechanism to do anything about simply defies credulity.

In this instance, the distinction between legal and factual innocence is really just a distinction without a difference.  And it is a travesty of justice that these individuals remain in prison, deprived of their liberty with such clear evidence of their innocence.

USA Today has done much of the research and investigative reporting to bring this story to the attention of the Court.