Who Is the Criminal, the Convict or the Government?

I recently read an article in the online USA Today, Scores in N.C. are legally ‘innocent,’ yet still imprisoned, which should give anyone pause. Here’s what it says:

There is a federal law that says that a felon may not possess a gun. The federal government thought that certain North Carolina crimes were felonies. They imprisoned a bunch of people who had committed those crimes and were later found with a gun. Now they realize that those crimes were not felonies and that these people are not guilty of the crime they are in prison for. Instead of trying to get these people out of prison, the federal government is doing its best to keep them in prison.

I could say a few things about this. However, it’s already been said by, among others, the Supreme Court and the authors of the Constitution:

Berger v United States, 295 U.S. 78, 88 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Imbler v. Pachtman, 424 U.S. 409, 427n25 (1976)

The possibility of personal iiability also could dampen the prosecutor’s exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial, this duty is enforced by the requirements of due process, but, after a conviction, the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility EC 7-13 (1969); ABA, Standards, supra, 3.11.

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort….

Constitution of the United States of America, Amendment V

No person shall … be deprived of life, liberty, or property, without due process of law….

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