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November 12, 2014

"A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle"

The title of this post is the title of this notable and timely new piece authored by Avi Kupfer and available via SSRN. Here is the abstract:

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense.  Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge.  The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities.  Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear.  The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope.  This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime.

This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses.  Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes.  The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.

November 12, 2014 at 11:24 AM | Permalink


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The same issue exists under 18 U.S.Code sec. 922(g)(9), concerning possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. Neither Congress nor the ATF has ever promulgated a state-by-state list of which misdemeanor crimes disqualify a defendant from ever again possessing a firearm. This leaves gun owners without clear guidance, and sometimes having to guess whether they have a disqualifying conviction.

Here in the Eastern District of Kentucky (Lexington) we have recently (since 2011) had a situation where the Sheriff's Dept. took several guns from Eric Laubis while he was subject to a Domestic Violence Restraining Order in May 2010 [sec. 922 (g)(8)]. After the DVO was dismissed in November 2010, Sheriff Kathy Witt refused to return Mr. Laubis's guns, on the grounds that his 2007 misdemeanor conviction for "harassment with contact" is a disqualifying conviction under sec. 922(g)(9). Laubis had originally been charged with "4th degree assault - domestic violence", but he and his attorney plea bargained the charge down to "harassment with contact". In January 2013, a local (state) Circuit Judge signed an Order directing the Sheriff to return Mr. Laubis's guns, but Sheriff Witt has refused to do so. Laubis filed a Section 1983 civil rights lawsuit in Federal court (E.D.Ky.)against Sheriff Witt, seeking a finding that she had violated his civil rights under color of law by refusing to return his guns, because his conviction does not satisfy sec. 922(g)(9). Chief Judge Karen Caldwell dismissed the lawsuit, holding that his claim was not justiciable under Section 1983. Laubis's appeal is now pending at the Sixth Circuit.

It is offensive that there is no black and white list of which state misdemeanor crimes disqualify the defendant from ever again possessing a firearm under sec. 92(g)(9). In some cases, it seems to violate the Notice provision of the Due Process clause. People should not have to guess whether they are forever disqualified from possessing a gun.

Posted by: Jim Gormley | Nov 12, 2014 12:04:56 PM

There is some merit to the idea, but I don't share the confidence that the U.S. Sentencing Commission would do a good job that the author of the Note does. A good start would be something more like a "Restatement", codifying existing case law in each jurisdiction, while also identifying those offenses for which there is no definitive ruling.

The trouble is that there are a small number of offenses that are regularly charged and clear, while there are a large number of offenses that are rarely brought. On the whole, case by case adjudication by a judge argued by interested prosecutors and defense lawyers is going to be more accurate than cursory review of large numbers of statutes by disinterested parties who may not be motivated to imagine all of the fact patterns that can go into a particular offense.

Posted by: ohwilleke | Nov 12, 2014 11:59:36 PM

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