Todd Myers is the Chief Assistant Prosecutor of Green County, Missouri which includes the town of Springfield in the southwest part of the state. He was recognized as an “Up & Coming Attorney” in Missouri Lawyers Weekly a few years ago, and with good reason. He had the highest rate of DWI convictions in the state. He was designated as a Special Assistant U.S. Attorney to handle firearms violations; he’s handled numerous jury trials including high-profile homicides, assaults, robberies, and the like. He’s even an adjuct professor at a local university. He’s upset, however, over Amendment 5 . . .

to the Missouri Constitution–passed by a landslide last August–which subjects any restriction on the right to keep and bear arms to strict scrutiny.

Myers said the charge of felony possession of a firearm is a very important one in his arsenal. “Drug dealers, gang members, domestic abusers, those are the types of people that are committing most of the most serious shootings in our community and we’d like to make sure we can prosecute them if they’re caught with firearms….”

Myers also said that Amendment 5 has kept him from putting people behind bars for longer periods of time. He gave as an example the case of Darrell Smith.

“Smith had prior convictions for felony stealing,” Myers said. “We were unable to pursue a felony murder charge against him based upon him being a felon who killed someone while he possessed a firearm. Instead that case went to trial on a traditional murder charge and he ended up being convicted of involuntary manslaughter.” Myers said his office has given up on pursuing felony possession cases in which prosecutors cannot prove the suspect has a previous violent felony conviction. Moving forward, he said he would like to see legal clarity. “What I’d like to see occur is that our Missouri state law be consistent with the federal law that any felon be prohibited from possessing a firearm,” Myers said.

Putting aside for the moment the fact that Smith could still be charged with violating federal law (which still prohibits persons convicted of a crime potentially punishable by more than one year in prison from possessing a firearm,) Darrell Smith was indeed found guilty of second-degree involuntary manslaughter as well as armed criminal action. He had originally pled guilty to second-degree murder, but withdrew his plea after the passage of Amendment 5.

The jury had the opportunity to choose between “charges of second-degree murder, first-degree involuntary manslaughter and second-degree involuntary manslaughter….” They found Smith guilty of second-degree involuntary manslaughter — the least serious charge — “after three hours of deliberation.” Second-degree involuntary manslaughter has a maximum penalty of seven years in prison.

Let me repeat that: Smith was found guilty only of involuntary manslaughter. The jury had the opportunity to convict him of the charge he’d original pled to, second-degree murder, but decided that the evidence presented wasn’t sufficient to convict.

Mr. Myers is no doubt correct: as a prosecutor, having the ability to throw a few extra charges at people that you just know are guilty of something is useful. It’s obviously much easier to convict someone of being a felon in possession of a firearm than it is murder. And sometimes prosecutors’ feelings actually are right — the guy they suspect of being guilty of doing something nasty, but can’t prove with the evidence actually is a miscreant that shouldn’t be allowed to walk the streets freely. Making a few more things illegal so that they can prosecute those people in the gray area might, potentially, keep a few more criminals behind bars.

But is that what we want from our justice system? Is it, in any sense, justice to allow prosecutors the flexibility to nail anyone they desire?