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August 2, 2018

Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act

As detailed in this press release, "Senators Orrin Hatch (R-UT) and Tom Cotton (R-AR) introduced The Restoring the Armed Career Criminal Act of 2018, legislation that will protect Americans from the most violent, repeat offenders." Here is part of the release:

“True criminal justice reform includes giving prosecutors the tools they need to seek enhanced penalties against the worst repeat offenders, said Hatch. “Prosecutors lost one of those tools three years ago when the Supreme Court ruled that a provision of the Armed Career Criminal Act was unconstitutionally vague. Criminals released early from prison as a result of that decision have gone on to commit heinous crimes, including the murder of three innocent Utahns. Our bill will bring much-needed clarity to the law while empowering prosecutors to pursue justice.”...

The National Association of Police Organizations offered their full support for this bill. In addition, the National Sheriffs’ Association has written a letter of support with over 3,000 elected sheriffs nationwide. Click here to read the full letter....

Originally passed by a unanimous vote in the House and Senate in 1984, the Armed Career Criminal Act requires a minimum 15-year prison sentence for felons convicted of unlawful possession of a firearm who have three prior state or federal convictions for violent felonies or serious drug offenses, which must have been committed on three different occasions. These are the worst-of-the worst, career criminals.

The ACCA defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies [in three ways, one of which was declared by the Supreme Court in Johnson] unconstitutionally vague and thus effectively void....

The Restoring the Armed Career Criminal Act of 2018 would do away with the concepts of “violent felony” and “serious drug offense” and replace them with a single category of “serious felony.” A serious felony would be any crime punishable by 10 years or more. By defining “serious felony” solely based on the potential term of imprisonment, the bill would address the vagueness issue and remove any discretion or doubt about which offenses qualify.

The bill would give federal prosecutors an additional tool to go after the most dangerous, career criminals and would not apply to low-level offenders. Specifically, the ACCA would still apply only in a case where a felon who possesses a firearm in violation of 18 U.S.C. § 922(g) has previously been convicted three times of serious felonies, which must have been committed on different occasions.

I noted in this post that the Armed Career Criminal Act is long overdue for a fix, but the solution presented here strikes me as problematic because it expands the reach of a severe mandatory minimum and still has ACCA's reach turn on prior offense definitions. Statutory mandatory minimums are always clunky, and all that may be needed to effectively achieve ACCA's goals would be to raise the applicable maximum terms for illegal gun possession by those with three or more felony convictions.  Judges could and would then use the US Sentencing Commission's guidelines, rather than the fortuity of some prior offense definitions, to determine who are truly the 'worst-of-the worst, career criminals" that should be imprisoned for decades.

Prior related post:

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act" 

August 2, 2018 at 12:51 AM | Permalink


even "punishable by 10 years" will engender litigation and uncertainty, as CA4's Simmons/Harp debacle shows. does it mean that this particular D was punishable by 10 years? the D with the least aggravated record? the most aggravated? what about states with Guidelines systems that allow for upward departures/variances? states where the heightened maximum was available only if P filed a prior felony information?

the most litigation-free measure (and the best measure of culpability, as determined in the prior state proceedings) is the actual sentence imposed.

Posted by: hgd | Aug 2, 2018 10:10:52 AM

Here are some examples of non-violent crimes carrying more than a ten year max in federal court; mail fraud, wire fraud, illegal reentry (just being here).

Posted by: defendergirl | Aug 2, 2018 2:47:04 PM

Putting aside federal courts where sentence roughly equals actually time served, a bigger problem from a practical perspective is state courts. A lot of states have rather broad sentencing ranges in which the sentence imposed has only a loose relation to the time actually served (which in turn leads to pressure for parole restrictions on certain offenses).

Punishable seems to be pretty straightforward and looks to the maximum penalty under the authorized range of punishment. However, there will undoubtedly be some issues about the applicable range of punishment that will need to be sorted out by the courts. My hunch (which could be wrong) is that the Supreme Court will apply an Apprendi-type analysis. If a fact needs to be found by the jury (or admitted to in a plea) before the defendant is eligible for a particular range of punishment then the offense is only punishable by the enhanced range if that fact is actually found. (Unless the enhanced range is based on a prior offense in which case it has to be found by the judge to trigger the higher range of punishment.) If the fact is merely something for the judge to consider in determining the appropriate punishment and does not need to be found beyond a reasonable doubt, then the potential higher punishment is part of the range of punishment.

However, basing it on the range of punishment leads to some weird results as state legislatures do not necessarily create a logical ranking of the seriousness of offenses -- particular in terms of always having a higher sentencing range for the type of offense that would suggest a risk of future violence. In my state using a weapon to cause physical injury or recklessly causing a serious physical injury In my state, the following offenses have a maximum punishment of exactly ten years and, thus would count under the proposed statute: involuntary (reckless) manslaughter; and stealing more than $25,000 (or $5,000 if victim is over 65). Some offenses with longer range of punishment include stealing from a bank (i.e. bank fraud) and perjury (but only if committed by a State witness in a criminal trial).

Posted by: tmm | Aug 2, 2018 3:48:58 PM

Problem with Federal anything is that they ratchet up the sentence on the flimsiest of evidence and rarely give reductions, mostly enhencements.

Federal is a smoke screen, just to prop up egos and appear tough on crime.

Yes, of coarse some deserve the gross sentences. Most federal judges could eSily be replaced by by robot or simply write a program to feed build the PSR, walla, thats your sentence.

I would be most happy to do a 5 min layout of federal sentences for people in a position of power in govnt.

Starting with Ex federal judge Jack Camp.

Posted by: MidWestGuy | Aug 2, 2018 10:51:30 PM

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