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Other than criminal history, is there any "offender characteristic" that you think must be considered at sentencing?

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November 4, 2019

Understanding the challenges of criminal history through the Armed Career Criminal Act

Thanks to everyone for being a great audience for our special guest today, and now we get back to our regular programming.  As promised, we are starting a turn toward a discussion of whether, when and how "offender circumstances" should to be considered at sentencing.  Though I mentioned age in class, we will start with slightly less controversial topics like criminal history and plea/cooperation discounts.  I suspect we will only get through the criminal history discussion on Wednesday, in part because the issue is a lot harder than you might first imagine.

The Supreme Court's ruling in Johnson v. United States in particular, and the operation of the Armed Career Criminal Act (ACCA) in general, provide a great setting to unpack the challenges of criminal history.  The Johnson case is excerpted in our casebook at pp. 295-300, and you may find it helpful to first focus on the general provisions of ACCA at 18 U.S.C. § 924(e), which provides (with key language emphasized):

In the case of a person who violates section 922(g) [prohibiting certain kinds of illegal possession of a firearm] and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

In other words, commit a firearm possession offense when already having three significant priors and there is a mandatory minimum prison term of 15 years.  This US Sentencing Commission document provides some basic data about the sentencing of firearm offenders that shows ACCA's dramatic impact:

  • The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 186 months.
  • The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 59 months.

In other words, for the same basic offense conduct and convicted of the same criminal statute, federal defendants on average receive more than a decade longer in prison (roughly three times longer) due to having certain types of prior offenses.

ACCA was one part of the massive Comprehensive Crime Control Act of 1984 (the Act which also created the US Sentencing Commission), so this distinctive mandatory minimum sentencing statute was never voted on independently.  Imagine being a member of Congress right now being asked to sign on to a bill proposing to repeal ACCA in its entirety (as a partial response to Johnson).  Would you support outright repeal or instead seek to amend 924(e)?  What kind of amendment would you seek?

November 4, 2019 in Clemency, Guideline sentencing systems | Permalink


I would support an amendment to the specific language in question in Johnson (i.e., "violence" as “conduct that presents a serious potential risk of physical injury to another”).The necessary amendment to cure the due process issue with the vagueness of this language at issue in Johnson, in my opinion, is simply not enough to cure all potential effects of the language. In addition to the vagueness issue, I think we see a potential situation with the crimes in Johnson where the ACCA could target individuals who are perhaps not the most culpable or deserving of a minimum fifteen year sentence. For example, do we think someone who has brandished a gun to rob individuals of low quantities of money for survival purposes with no intention of ever using the gun is as culpable as someone who has fired his gun or has a conviction for attempted murder? Probably not. And not only is someone that never intends to cause bodily harm or use a brandished weapon less culpable, but I would find it difficult to call that individual deserving of a fifteen year minimum.

For this reason, I would be in support of an amendment that, not only cures the issue of unconstitutional vagueness by listing specific violent offenses, but which also narrows these offenses to include only the more serious of crimes that require some degree of intent to actually use a weapon or cause serious bodily injury. Only under this statutory scheme would I be comfortable labeling someone an "armed career criminal" and imposing a fifteen year minimum.

Posted by: Micaela Taylor | Nov 5, 2019 8:11:49 PM

I agree with Micaela. The type of amendment she discusses would further the legislative goal of the ACCA (to protect the public from repeat violent offenders). 
What would *not* further this legislative goal is the “Restoring the ACCA” bill that Sen. Tom Cotton re-introduced this year. See https://www.cotton.senate.gov/?p=press_release&id=1128 (text of bill here: https://www.congress.gov/bill/116th-congress/senate-bill/1547/text). Basically, this bill would eliminate the two current categories covered by 924(e)—“violent felony” and “serious drug offenses”—and replace them with the more general category, “serious felony.” The bill defines “serious felony” as one punishable by imprisonment for a statutory maximum term of not less than 10 years. 
I found a prior blog post about the 2018 introduction of the bill. Prof. Berman, I agree with your sentiments expressed in that post (https://sentencing.typepad.com/sentencing_law_and_policy/2018/08/-senators-orrin-hatch-and-tom-cotton-proposing-johnson-fix-to-expand-reach-of-armed-career-criminal-.html). 
The proposal dramatically expands the reach of the ACCA. This expanded reach would cover offenders who were never violent (and likely will never be violent).  So, this expansion doesn’t really further the legislative purpose of the ACCA at all. 
Yes, the bill eliminates vagueness/uncertainty by establishing a more “categorical” rule (therefore correcting the Johnson problem). But this categorical approach comes at the expense of bringing non-violent offenders under the ACCA’s reach.

Posted by: Hannah Wirt | Nov 6, 2019 12:03:13 PM

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