We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE FUTURE OF EVERYTHING
Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.
I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.
Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”
So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?
Today, we’ll consider Trump and firearms. Tomorrow will be marijuana and drugs, followed by sentence reform and clemency on Thursday, and the BOP on Friday.
THE FUTURE OF GUNS
Of most interest to readers is the future of 18 USC § 922(g), the statute that prohibits everyone from people with a prior felony to people who dabble in recreational marijuana from possessing a gun or ammo.
The action has been in the courts over the past three years, ever since the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision in 2022. Last June, the Supreme Court sent its piled-up 922(g) cases – which landed on its docket because of Bruen and in anticipation of United States v. Rahimi – back to lower courts to redo in light of Rahimi and whatever it meant.
Trump promises to bring a pro-gun, conservative criminal justice policy back to Washington. As for § 922(g)(1), however, there is a collision of two issues: one he likes – 2nd Amendment gun rights – and one he doesn’t – which is appearing to be soft on crime.
What may bother Trump is knowing that even as President, he cannot legally possess a gun or ammo as long as his 34 New York felony convictions stand. While he may not publicly endorse an effort to rewrite § 922(g)(1), he could instruct his Attorney General to soft pedal opposition to cases holding that the statute is unconstitutional as applied to nonviolent felons.
That way, felon-in-possession would no longer apply to Trump… or to a lot of people convicted of § 922(g)(1).
Donald Trump ran as a defender of gun rights but didn’t make any new public policy promises. Instead, as The Reload noted, “Trump primarily hectored gun owners for their, in his view, unreliability in turning out to vote.”
As president, Trump was not necessarily dependable in defending the 2nd Amendment. After the Parkland, Florida, school shooting, he “forcefully argued for a litany of gun safety measures that the National Rifle Association had long opposed,” The New York Times reported. He reportedly thought about an assault rifle ban after an El Paso mass shooting, but his aides talked him out of it. After the Las Vegas mass shooting, Trump pushed for and got a bump-stock ban from the ATF, which was later thrown out by the courts.
Biden’s gun-control measures. The likeliest benefit he could confer on prisoners with § 922(g)(1) convictions is to undo the Dept of Justice’s knee-jerk opposition to decisions such as the 3rd Circuit’s Range v. Atty General (which held application of § 922(g)(1) to a defendant with a 25-year-old food-stamp fraud conviction violated the 2nd Amendment) and is headed back to the Supreme Court.
Do not expect Trump or the new Republican-controlled Congress to do anything to change 18 USC § 924(c) to ease punishments for people possessing or using guns in crimes of violence or drug offenses.
Crime and Justice News, Trump Victory Signals Pro-Gun, Tough On Crime Agenda (November 6, 2024)
The Reload, Analysis: What Trump Could Do on Gun Policy (November 8, 2024)
The Reload, Analysis: Why Were Guns an Afterthought in 2024? (November 10, 2024)
The Trace, The Four Federal Gun Violence Prevention Efforts Trump Could Dismantle (November 1, 2024)
TOMORROW – THE FUTURE OF MARIJUANA AND CONTROLLED SUBSTANCES
– Thomas L. Root