Thoughtful comments on the ugly ACCA bigger picture from an informed reader

A federal public defender today sent me a terrific e-mail about ACCA litigation, which he has allowed me to reprint in full below:

Between and among the various opinions written in Sykesand upon commentary found at SL&P and other places (i.e., the New York Times), I fear that a meaningful opportunity for more meaningful discussion is being missed.

The litigiousness of the Armed Career Criminal Act, as colorfully depicted by Justice Scalia, involves, invites, and permits all involved in the federal criminal justice system to approach the meaningful task of sentencing on "can't see the forest for the trees" terms. By this I start from the proposition that reasonable minds can surely disagree as to whether an armed recidivist like Sykes should properly receive a sentence of not more than 10 years (and, often, significantly less) or one of not less than 15 years (and, sometimes, slightly longer).  But the proper and just resolution to such disagreements simply shouldn't turn doctrinally upon whether or not the Indiana crime (and, pursuant to the categorical approach, it is indeed the Indiana crime, rather than the crime that Sykes actually committed) of vehicular flight from an officer is or is not sufficiently similar to the crimes of burglary, arson, extortion, or explosives in terms of the kind and degree of purposeful risked harm at issue. To premise a significant decision involving literally years of a man's liberty, with the attendant cost attached to the deprivation of liberty, upon such minutia seems only slightly more principled than deciding between a sentence of A or a dramatically greater sentence of B upon the outcome of a game of rock-paper-scissors (the latter being a methodology less susceptible of frequent Supreme Court litigation than the ACCA).

The point here is not that Sykes is wrongly decided nor is it that the nuances of a defendant's prior criminality have no place at the figurative (and, for that matter, literal) sentencing table.  Rather, the point is that premising punishment in substantial manners upon such fine lines seems inconsistent with the Section 3553(a) "parsimony" clause: if not more than 10 years is "sufficient" for Sykes if the Indiana crime is not violent, how does at least 15 years become "sufficient but no greater than necessary" simply upon the same Indiana crime being deemed "violent"?

And, as you know, the cited concern extends beyond statutory minimums to guideline application.  A recidivist drug dealing client of mine is on the verge of signing a plea agreement that stands for either of two outcomes: (1) his post-acceptance number, prior to an anticipated reward for substantial assistance, will be 121 months; or (2) the relevant number will be 262!  The more than double-down contingency has nothing to do with his federal offense, his personal characteristics, or even an actual assessment of his prior criminality.  Instead, more than 10 pre-5K years of his life turn on whether or not a court's contemplation of note 1 to Section 4B1.2, with an attendant Shepard analysis of the relevant statute and underlying state court file, results in a finding that the client's 2001 conviction for "maintaining a drug trafficking place" in violation of Wisconsin law constitutes a "controlled substance offense" for purposes of career offender status. Comparable to Sykes, reasonable minds may differ as to whether my client should get 10 years or 22 years but contemplation of the meaningful matter should be more principled than it will be.

I wholly agree with this commentary and its justifiable consternation about the impact of criminal history diktats on federal sentencing outcomes.  And, among other important insights, this commentary spotlights that detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.

Some related recent posts on Sykes:

• SCOTUS gives wins to the prosecution in DePierre and Sykes
• Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision
• If nothing else, ACCA merits credit for creating interesting coalitions of Justices