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Supreme Court’s Rare Decision That Found Part of Law Used to Impose Harsh Mandatory Sentences Unconstitutional

The Supreme Court ruled a part of the Armed Career Criminals Act (ACCA), which enables sentencing enhancements for “violent felonies,” unconstitutional because it is vague, requires “guesswork,” and denies defendants due process. Now, thousands of prisoners in the United States prosecuted under this law may potentially be resentenced.

The decision, issued on June 26 [PDF], marked the first time in over fifteen years that the court had found a criminal statute was void for vagueness. Leah Litman for Columbia Law Review previously pointed out, “Hispanic and black offenders receive the ACCA enhancement at higher rates than white offenders do.” The harsh mandatory minimum may explain why many defendants “plead guilty to avoid more extensive prison time.”

ACCA was a prelude to federal “three strikes” laws of the 1990s. In 1984, it was passed so that a 15-year mandatory minimum sentence could be imposed on any person convicted of possessing a firearm as a felon who also had three prior convictions for a “violent felony.”

The law defined “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” It lists burglary, arson, or extortion, as well as the “use of explosives,” as crimes that would trigger the enhancement. But vague (and now unconstitutional) part of the law is the “residual clause” that says the law can be applied to any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The case the Supreme Court heard, Johnson v. United States, involved whether this part of ACCA covered Minnesota’s “offense of unlawful possession of a short-barreled shotgun.”

Samuel Johnson, a white supremacist, was monitored by the FBI in 2010 as he became more and more involved in a neo-Nazi organization. The FBI suspected he might be planning acts of terrorism. He informed undercover agents he planned to attack “the Mexican consulate” in Minnesota, “progressive bookstores,” and “liberals.” He showed agents “an AK-47 rifle, several semiautomatic firearms and over 1,000 rounds of ammunition.” Prosecutors sought a 15-year sentencing enhancement and were granted the mandatory minimum sentence under ACCA.

As Justice Antonin Scalia explains in the decision, “Since 2007, this court has decided four cases attempting to discern its meaning.” It ruled in 2007 this part of the law covered attempted burglary in Florida and, in 2011, the offense of “vehicular flight from a law enforcement officer” in Indiana. The court, however, ruled in 2008 that the law did not cover “driving under the influence” in New Mexico and, in 2009, that it did not cover “failure to report to a penal institution” in Illinois.

Over the past eight years, Scalia notes that the court made “repeated attempts” but repeatedly failed to “craft a principled and objective standard out of the residual clause.” Seeing how it is impossible to prevent any “risk comparison” from “devolving into guesswork and intuition,” it was deemed to be unfair.

“The residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law,” according to the decision.

For example, Scalia explains:

When deciding whether unlawful possession of a short-barreled shotgun is a violent felony, do we confine our attention to the risk that the shotgun will go off by accident while in someone’s possession? Or do we also consider the possibility that the person possessing the shotgun will later use it to commit a crime? The inclusion of burglary and extortion among the enumerated offenses suggests that a crime may qualify under the residual clause even if the physical injury is remote from the criminal act. But how remote is too remote? Once again, the residual clause yields no answers.

Other questions that judges and prosecutors have to use guesswork to answer include:

…Does the ordinary burglar invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarrassing personal information?

Because it is impossible to objectively answer these kinds of questions, this part of the law is unconstitutional.

Families Against Mandatory Minimums, a group fighting for smarter sentencing laws that filed a brief in support of Johnson’s challenge, praised the ruling.

“All criminal laws should be clear about what conduct is criminal,” said Mary Price, FAMM General Counsel. “This is especially true when the law calls for a mandatory minimum sentence. Today the Supreme Court ruled (decisively) in favor of clarity in one of the harshest mandatory minimum laws on the books.”

According to Litman, this could affect “over 6,000 federal prisoners who have been sentenced under ACCA.” However, there exists a patchwork of “doctrines and statutes” that may limit the ability of a defendant to have his or her conviction reviewed.

The decision will definitely apply to cases where the prisoner’s conviction is not yet final. A prisoner could now use his or her appeal to raise the issue of ACCA’s unconstitutional vagueness.

Since the ruling overruled holdings in the cases in Florida and Indiana, that likely opens up challenges from any prisoners who had their sentence enhanced because of attempted burglary or “vehicular flight from a law enforcement officer.” As it is applied retroactively, it will be significant.

Douglas A. Berman, a professor at Moritz College of Law at Ohio University, suggests the impact of this law is that some of these individuals will now only be legally sentenced up to 10 years in prison instead of a minimum sentence of 15 years.

Federal prosecutors are “duty bound” to review cases and determine which federal prisoners have strong claims as a result of this decision. Lawyers will now be able to obtain relief for prisoners serving lengthy prison sentences because of this part of the law.

Creative Commons Licensed Photo from Mark Fischer.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."