Archive for February, 2012

The Right for Felons to Bear Arms

posted by Judge_Burke @ 17:10 PM
February 3, 2012

It is taken as a given by many that the individual right to bear arms recognized by the United States Supreme Court did not give felons any right to have a gun. But there are state courts that are now reexamining that conventional legal wisdom. In Baysden v. State (N.C. Ct. App. Nov. 15, 2011) (2–1) the court held  that North Carolina’s ban on possession of guns by a felon violates the North Carolina Constitution’s right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which also found that the North Carolina Constitution gave that right as well. There is not unanimity on this holding, but a North Carolina trial court decision, Johnston v. State, held the same under the Second Amendment.  The vast majority of states continue to find no constitutional flaw in banning felons from possession of guns but  People v. Dewitt (Colo. Ct. App. 2011) found a broad right — under the Colorado Constitution.


 If the state constitution does not grant felons the right to have guns, there are other avenues. A New York Times article reports that some states are making it possible for felons to regain gun rights, see here




An interesting essay on Padilla v. Kentucky

posted by Judge_Burke @ 20:13 PM
February 2, 2012

Margaret Colgate Love has posted The Collateral Consequences of Padilla V. Kentucky: Is Forgiveness Now Constitutionally Required? (University of Pennsylvania Law Review PENNumbra, Vol. 160, No. 113, 2011) on SSRN.  Here is the abstract: 

People who commit a crime and are brought before a court to be sentenced expect to face a prison term or at least probation, and perhaps a fine. They may expect to experience a degree of social opprobrium, the so-called “stigma of conviction.” They surely understand that having a criminal record is not career-enhancing. But they also probably think that at some point they will be able to pay their debt to society and return to its good graces. They are reinforced in their belief in the possibility of redemption by periodic reminders from our elected leaders: President George W. Bush called America “the land of second chance,” and President Obama famously called to congratulate the Philadelphia Eagles for letting Michael Vick walk directly from prison back into the team’s starting lineup. 

Continue reading “Love on Collateral Consequences of Padilla v. Kentucky “



Sentencing Reform in Georgia

posted by Judge_Burke @ 20:11 PM
February 2, 2012

Many state Supreme Court Justices now give a state of the judiciary address to their legislatures. These speeches give the judiciary a platform used many times to highlight the budget needs of state courts. The Chief Justice of Georgia focused not on budget issues but the need for sentencing reform.  Coverage of the Chief Justice’s speech was in  this recent piece from the Atlanta Journal-Constitution, which gets started this way:

Georgia’s chief justice on Wednesday called on lawmakers to enact sentencing reforms that steer nonviolent offenders away from costly prison sentences, saying, “we now know that being tough on crime is not enough.

In a 25-minute address before a joint session of the Legislature, Chief Justice Carol Hunstein asked lawmakers to adopt proposals by the Special Council on Criminal Justice Reform that studied Georgia’s sentencing and corrections system.  The state can no longer afford to spend more than $1 billion a year to maintain the nation’s fourth-highest incarceration rate, she said.

The initiative, supported by Gov. Nathan Deal and Democratic and Republican leaders, calls for increased funding for drug, mental health and veterans’ courts across the state and for other alternatives to prison.  Legislation is being drafted and will be introduced in the coming weeks, said Brian Robinson, a spokesman in the governor’s office.  Deal’s budget plan already asks for $10 million for new accountability courts.

Hunstein, a member of the special council, said its members “began united in our belief that warehousing nonviolent offenders who are addicted to drugs or are mentally ill does nothing to improve the public safety.  Indeed, in the long run, it threatens it.”

Accountability courts address the roots of crime and reduce recidivism, she said.  “If we simply throw low-risk offenders into prison, rather than holding them accountable for their wrongdoing and addressing the source of their criminal behavior, they merely become hardened criminals who are more likely to re-offend when they are released.”