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November 1, 2015

The simple, sound and shrewd ACCA/Johnson fix in SRCA 2015

I have now had a chance to give extra thought to the proposed statutory changes appearing in Section 105 of the Senate's Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here).  When I first looked at this Section, labelled an "Amendment to certain penalties for certain firearm offenses and armed career criminal provision," I was a bit surprised to see it did not seem to directly address or respond to the Supreme Court's recent ruling in Johnson v. United States striking down a portion of the Armed Career Criminal Act as unconstitutionally vague.  But upon reflection, I have come to the conclusion, as reflected in the title of this post, that the proposed statutory changes appearing in Section 105 of SRCA constitute a simple, sound and shrewd way to fix some of the broader ACCA problems that Johnson reflects.  Let me explain my thinking here.

1.  Though the Johnson vagueness ruling addressed the most confounding statutory provision of ACCA (the so-called "residual clause"), the ruling is really just a symptom of the broader ACCA disease.  That broader disease concerns the fact that, under current federal law, the same basic offense of being a felon in possession of a firearm (FIP) has a statutory maximum prison sentence of 10 years UNLESS the offender has three ACCA-qualifying priors, in which case the offender faces a mandatory minimum 15-year prison sentence.  Because the stakes of what qualifies as an ACCA prior is now so consequential, there is (understandably) lots and lots of litigation over what state priors trigger ACCA.

2.  The Johnson ruling, culminating a decade of Supreme Court (and lower court) struggles with one clause defining ACCA predicates, eliminated one source of uncertainty and litigation by declaring that clause unconstitutionally vague.  But lots of other parts of ACCA have also generated uncertainty and litigation, and the Johnson ruling did nothing to resolve or minimize the importance of all that uncertainty and litigation.  Moreover, if Congress were to try to just "fix" the language of the ACCA residual clause that Johnson struck down, litigation would be sure to follow concerning the meaning of any fix language. 

3.  Into this enduring ACCA morass comes Section 105 of SRCA which, through a relative tweak, arguably fixes all these problems by raising the FIP statutory prison maximum to 15 years while lowering the ACCA mandatory minimum to 10 years.  Through this simple change, there will no longer be a critical imperative for prosecutors (or probation officers) or sentencing judges (or appellate courts) to figure out in every close case whether an FIP offender qualifies for ACCA.  If SRCA 2015 becomes law, in the many cases that legally are "close calls," federal judges will reasonably conclude that a prison sentence in the range of 10 to 15 is about right, and there will be no need to have a major legal fight over what exactly qualifies as an ACCA predicate.  (In addition, if Section 105 of SRCA 2015 is enacted, judges will have greater discretion to punish harshly the worst FIP offenders who do not trigger ACCA and will also still be compelled to give at least 10 years to FIP offenders who clearly qualify for ACCA penalties.)

4.  The US Sentencing Commission's recent statement concerning SRCA 2015 discusses why its own extensive research on mandatory minimums support this reform (and why it would, in turn, be just to make this change retroactive):

The Commission observed [in its extensive study of mandatory minimum sentencing provisions] that the ACCA’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, which increased the potential for inconsistent application insofar as the 15-year penalty may be viewed as excessively severe in those cases.  To mitigate both the over-severity and disparate application of the ACCA, the Commission recommended that Congress consider clarifying the statutory definitions in the ACCA and reduce its severity.

5. By making its ACCA changes retroactive, SRCA 2015 not only could bring more equitable and just outcomes to many offenders previously subject to severe ACCA terms based on debatable interpretations of ACCA priors, it also could potentially short-circuit lots of complicated (and expensive) post-Johnson habeas litigtion that might well divide lower courts and take years to resolve through layers of complicated federal appeals. (Post-Johnson litigation is already starting to divide lower courts on some issues, and lots of enduring litigation messiness (and costs) seem inevitable without the SRCA fix and its retroactivity provision.)

I could go on and on (especially to praise the particular way SRCA 2015 makes its ACCA fix retroactive), but I fear this post is already more than long enough.  And I am be especially interested in hearing from those laboring in the post-Johnson ACCA litigation trenches concerning whether they share my latest feeling that the SRCA 2015 fix may now represent the best of all possible ACCA worlds. 

November 1, 2015 at 07:03 PM | Permalink

Comments

The only flaw in this theory is that the Guideline swing can be quite wide and if a defendant is not an ACCA, his Guideline range is (currently) likely to be well below 10 years so the issues would still be litigated, although courts could impose above Guideline sentences and insulate themselves from appellate review using the 3553 factors to get to the number they want. It might also drive parties to agree on a joint compromise recommendation in close cases, which would also reduce the amount of litigation.

Posted by: defendergirl | Nov 2, 2015 12:56:57 PM

Right, defendergirl.

Doug is correct that it likely minimizes a litigation problem but it does so by increasing the average sentence under the ACCA. This is a perfect example of how the so-called reforms are simply moving the furniture around.

Posted by: Daniel | Nov 2, 2015 1:09:53 PM

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