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June 13, 2015

How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?

The Supreme Court Term is winding down, and we might get a ruling as early as this coming wee in the (re)argued case Johnson v. US concerning the (un)constitutionality of the Armed Career Criminal Act.  As federal sentencing fans should know, there seem to be a real chance that Justice Scalia will convince enough of his colleagues to strike down ACCA as unconstitutionally vague.

Helpfully, Leah Litman has already authored an article, "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality", about some of the legal issues that might follow from a big constitutional ruling in Johnson.  But the question in the title of this post is focused on the practical question of just how many current federal prisoners serving ACCA sentences of 15 or more years could seek to benefit from ACCA.  

This helpful new "Quick Facts" report from the US Sentencing Commission indicates that in Fiscal Year 2014 roughly 10% of 5,500 federal firearm offenders were sentenced under ACCA to an average sentence of 188 months in prison.  Assuming that these numbers are typical for firearm sentencing in each of the last dozen years, we can then extrapolate to estimate that there may be as many as 7,000 current federal prisoners serving ACCA sentencing term.

Critically, though, even if the Supreme Court were to declare ACCA's residual clause unconstitutionally vague, that ruling alone would not necessarily impact all (or perhaps even most) of current ACCA prisoners.  Sentencing judges in many (maybe most) cases sentenced under ACCA likely did not rely on the residual clause of the statute to find enough triggering prior offenses to require the application of the severe ACCA sentence.  Among the uncertainties which could flow from a big ACCA ruling in Johnson  is whether other parts of the ACCA statute and prior convictions based on other parts of the ACCA statute are still valid if one ACCA clause is struck down as unconstitutionally vague.

Some related prior posts:

June 13, 2015 at 10:07 AM | Permalink


I am curious to know if this new law also applies to Career Criminal offenders too? Thanks

Posted by: wendy niles | Jul 14, 2015 4:32:17 AM

My name is Amanda and my husband has been in prison for almost 6yrs. He was charged as a felon in possession of a fire arm, and because of previous charges they said he is considered a career criminal and would have to serve a min of 15yrs, and they gave him the option of taking a 12yr plea. Can you help me or point me in the right direction on how to go about getting his sentence reduced?

Thank you for your time,
Amanda Helmick

Posted by: Amanda Helmick | Jul 23, 2015 1:36:25 PM

My husband was sentenced to 17and 1/2 yrs not career criminal 7 of those years was for a gun charge he had no gun they did not produce a gun at trial he is over 55yrs old and has already served almost 12yrs they have an appeal for this charge under johnson vs us but we have yet to hear anything about early release

Posted by: ann | Apr 25, 2017 10:30:46 AM

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