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December 12, 2015

"The Armed Career Criminal Act: Imprecise, Indeterminate, and Unconstitutional"

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

The Armed Career Criminal Act provides a mandatory minimum fifteen-year sentence enhancement for felons possessing a firearm who have previously been convicted three times of a “violent felony” or a “serious drug offense.” Despite this seemingly clear mandate, the statute has been embroiled in controversy for decades as judges struggle to determine what predicate crimes meet this standard.  The culmination of this battle resulted in the invalidation of the ACCA’s “residual clause” when the Supreme Court found that the clause violated due process in Johnson v. United States.  Nonetheless, the remaining provisions of the ACCA are still problematic.

For example, although burglary is a specifically enumerated offense that constitutes a violent felony, burglary convictions in some states have been held to be violent felonies while burglary convictions in other states have not. Likewise, offenses involving “the use, attempted use, or threatened use of physical force against the person of another” have mired the courts in similar difficulties in determining whether the particular offensive qualifies as violent felony.  Perhaps most troublesome, a finding of juvenile delinquency can be considered a criminal conviction that subjects an individual to ACCA enhancement in a subsequent adult proceeding, despite the fact that juveniles do not have the right to a jury trial. This paper argues that the ACCA is imprecise, indeterminate, and insusceptible of principled and predictable interpretation.  Absent a wholesale modification by Congress, the substantive provisions of the ACCA examined in this paper ought to be held by the courts to be unconstitutional because they deprive defendants of due process.

December 12, 2015 at 12:11 PM | Permalink


I would add that the sentencing guidelines are riddled with the same basic issues of imprecision and unpredictability, although Booker spared them the kind of scrutiny they would otherwise deserve in this regard.

Posted by: USPO | Dec 12, 2015 10:13:38 PM

Obviously the Acca was created to get rid of undesireables as well as career offender.

Problem is that they use it to enhance antone they can.

When an Ausa files it for owi and other misc areas and the federal judge goes along with it. Not just a judge, but all of them.

All except for Judge Mcconnle. Was that the judge in the dustrict that dissented on Begay. I know I misspelled his name. He, he is a mans man. Politely dissented and enumerated that mens rea is lacking and no matter how many iwis, none if them quakify for career or armed career enhancements.

Judge Mcconnel, (apologize on your name), you did mire for the Usa than all of the tax returns in America each and every yr. thing is, his work us still helping lots of defendents.

Merry Xmas to you and I hope you know and realize the effect you have had on America.

Thank You. P.S. Can you help Packers, they are in a terrible slump. If anyone could its you. I am not a federal employee supporter. Bu this man reached in and had a set, had the brains to enumerate upon and carry it forward. He is a very good person.

Posted by: MidWestGuy | Dec 13, 2015 3:38:48 PM

I don't really understand the article's argument. It seems like it's taking issue with the categorical approach (which is the creation of the Supreme Court, not a part of ACCA itself). But honestly, the categorical approach has been a boon for defendants. Tons of convictions can't be considered because the statute of conviction was too broad and no Shepard docs survive or help. If you went to a recidivist system where courts could consider prior conduct, it would not be good for defendants.

Posted by: Jay | Dec 13, 2015 10:00:07 PM

The recidivist system is what the DOJ is proposing as a fix to the career offender guideline's resdidual clause.

Posted by: Da Man | Dec 14, 2015 1:30:20 PM

Strictly defined criteria are unfair, because of insufficient judge discretion. Vague criteria, giving judges discretion are unconstitutional.

Posted by: Supremacy Claus | Dec 14, 2015 2:13:18 PM

I'm not sure what DOJ proposal you're referring to. ACCA is already a recidivist sentencing enhancement scheme, which is all I meant.

Posted by: Jay | Dec 15, 2015 2:02:58 PM

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