Despite several recent high-profile cases where the U.S. Justice Department has urged the release of prisoners who all parties agreed were "legally innocent, dozens more remain behind bars.in North Carolina. The cases arise in instances where men were imprisoned for violation of the federal law preventing convicted felons from possessing a gun. The problem was that, according to USA Today who has investigated such cases is that" none of them had criminal records serious enough to make them felons under federal law.

Adding to the problem is the fact that the Justice Department has not made efforts to identify or notify men in these circumstances that would be entitled to release. The Justice Department avers that these prisoners must still file court pleadings to challenge these convictions and win their release.

The convictions that fall into this category stem from a law enacted decades ago that made it a crime for convicted felons to possess a gun, thereby giving prosecutors an avenue to win a longer sentence than they might have obtained without such a law. Under Congress' definition, a person who has been convicted of a crime serious enough to be sentenced to more than a year in prison would be the target of a "felon in possession" charge.

North Carolina's "structured sentencing" law permitted the amputation of the maximum prison term for a crime depending upon the criminal record of the person committing the crime. Federal judges in that state interpreted that law to mean that "if" you could have gone to prison for more than a year for the crime you committed, then you were a felon and legally barred from possessing a firearm.

The 4th Circuit Court of Appeals finally called a halt to this practice in the past year in the case of United States v. Simmons, holding that about half of the felony convictions in North Carolina's state courts in the past ten years should no longer be considered felonies under federal law. The U.S. Attorney in Greensboro, N.C., concedes that more than a third of the gun cases prosecuted by his office might be called into question by this decision, and that "We're going to be addressing this for a while."

The problem is that other federal prosecutors do not view the review of these cases or the release of the prisoners still serving time for them as high priority. Anne Tompkins, the U.S. Attorney in Charlotte, states that "We can't be outcome driven. We've got to make sure we follow the law, and people should want us to do that," adding that they were "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

The U.S. Attorney in Raleigh says that, "No one wants anyone to spend time in jail who should not be there," but adds that convictions that are already final "are in a totally different posture and require us to follow the existing statutory habeas law." Even Rand has said that he is "not aware of any procedural mechanism by which (these men) can be afforded relief."

The defense bar does not agree, and think federal prosecutors should assume a larger role in bringing these case forward for review. According to Eric Placke, a federal public defender in Greensboro, "We're doing it with our hands tied. I appreciate the compelling considerations they have to deal with. But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive," noting that his office has limited access to records of closed cases.

Legal experts agree that the problem of how to procedurally attack these cases is not an easy one. Although federal habeas corpus statutes permit the challenge of criminal convictions if new evidence is discovered, it might not be an appropriate tool with which to proceed. Nancy King, a law professor at Vanderbuilt University, states that often that saying, "I'm innocent" may not be sufficient to trigger a successful habeas action. Nevertheless, she said, "innocent people should be able to get out of prison."

One of the first imprisoned men to have his conviction vacated was Terrell McCullum, who had been identified by the USA investigation as a prisoner whose factual circumstances showed that he was innocent of the federal gun charges that brought about his imprisonment. Still, as late as June, Federal prosecutors argued against his release, stating in an April, 2012 court filing that "At most, (McCullum) has become legally innocent of the charges against him," but that he did have a criminal record, did possess a gun, and should not be released.

Fortunately, in August, U.S. District Court Judge James Fox rejected prosecutors' argument and threw out McCullum's gun possession conviction, "in the interests of justice," although McCullum had completed his sentence and had been released a month earlier. Kimberly Harris, another prisoner serving an 8-year prison sentence for gun possession, was also ordered released.

According to USA Today, its investigation was limited to examining every gun conviction in western North Carolina between 2005 and 2011, and"was limited to people who had been convicted only of gun possession, and included only those cases in which federal prosecutors had specifically identified the prior offense that made possession a crime." One can only hope that even a more thorough sweep of federal conviction records will identify even more prisoners who have been wrongfully convcted of crimes and have been separated from their families and friends despite their legal innocence. The spirit of American justice demands no less.

See: www.usatoday.cominews/nation/story/2012-06-13/innocent-incarcerated­prisoners/55585176/1

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