North Carolina inmates imprisoned for a crime they didn't commit

But many more federal inmates may be serving longer terms than they should be because of the same misunderstanding of who is and is not a felon.  

"There are a ton of sentencing enhancements that are affected by this," said Alan Dubois, senior appellate attorney for the federal public defenders office in Raleigh. The cases involved range from drug charges to immigration violations.

Federal law defines a "felon" as someone who has committed a crime for which he could have been sentenced to more than a year in jail.

North Carolina defines a felon based on the act, and considers a person's criminal record along with current charges to determine the length of a sentence.

"It was meant to, as the name implied, make things more structured, more predictable," said James Markham, a professor of public law and government at UNC.

Many people who are convicted of lower-level felonies under North Carolina law do not qualify for sentences of more than one year. 

"As it turns out, unless you have a really extensive record, almost all (low-level) felonies are not punishable by over a year," Markham said. 

But for years, federal prosecutors and courts used the higher estimate, based on whether even someone with an improbably extensive criminal record could receive a year in prison for a particular crime, to determine if any defendant convicted of that same crime was a federal felon.

The federal courts had made "a mockery of North Carolina's carefully crafted sentencing scheme," the court wrote. 

Almost immediately, say prosecutors and defense lawyers, the courts changed how they handled cases that had not been settled yet. 

"When the Fourth Circuit rendered its Simmons decision, our office quickly agreed to dismissal or re-sentencings in about 40 cases," said Thomas Walker, the federal prosecutor for North Carolina's eastern district. 

But most of those who had already been convicted and sentenced under the felony gun law have not seen their cases dismissed or been re-sentenced. 

“But let’s be very careful before we conclude that all these individuals who actually possessed guns are entitled to be released. We have an obligation to review these case by case," Walker said in an email.

Scott Holmes, a private lawyer who is representing people who were erroneously sentenced as having felony records, is finding that effort slow going. "In the eastern district, they are fighting every case, even actual innocence cases," he said. "They're fighting it tooth and nail."

He and other defense lawyers say that prosecutors are raising technical objections based on whether motions were filed on time or involved issues that defendants are technically barred from raising.

The defendants involved are not always the most sympathetic. All have, after all, been convicted of other crimes. However, in terms of those convicted under federal felony gun law, they're serving time for a crime they technically did not commit. 

A far larger group is serving longer sentences than they should because of federal felony rules. 

Federal law says that defendants can be charged as habitual felons or see their sentences increased if they have prior state felony convictions on their records. The same mistake made in the gun cases has been made in hundreds of other cases, although there's no exact figure.

"It's very difficult to figure out how many cases this may affect," said Devon Donahue, a federal defender who represents some of the inmates in question. She has identified over 100 cases in the Eastern District of North Carolina alone, but has had to rely on a combination of ad hoc methods to make her list. In some cases, defendants themselves have called their cases to her attention. 

"The U.S. Attorney's Office is fighting us every step of the way," Donahue said. 

Prosecutors could smooth the way to sort out many, if not all, of these cases, said Matthew Segal, who now works for the ACLU in Massachusetts. He helped argue the Simmons case on behalf of the public defenders in North Carolina. 

The law gives ample discretion," Segal said. Prosecutors don't necessarily have to raise the technical and procedural objections, especially since the cases involve a simple mistake. 

"It turns out everyone was wrong about who was a felon and who wasn't," he said.