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August 1, 2018

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

The title of this post is the headline of this press release from the US Department of Justice today, and here are some of the comments that follow that focus on ACCA:

[B]ecause of a 2015 Supreme Court decision holding that the definition of violent felony was too vague — we are missing one of the most important law enforcement tools we had. The Johnson case is quite significant.

Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country.

This court decision led to the release of a man from right here in Little Rock. Eight months after he was released from prison, he was arrested for aggravated assault and domestic battery. A year after that he was arrested for kidnapping, rape, aggravated assault, battery, and terroristic threats. He is accused of raping a 62-year old woman and an autistic homeless man.

This court ruling also led to the release of a man who allegedly punched a pregnant woman at a nightclub in Forrest City. When police intervened, he allegedly assaulted three of them, cutting one of them on the forehead.

A man from Pine Bluff got his 15 year sentence cut in half. A year later, he got into an argument with a co-worker. According to the allegations against him, the co-worker turned around to walk away when the defendant sucker-punched him, broke his nose and eye sockets, chipped a tooth and busted his lip.

Two of these criminals I’ve talked about are now back in prison. They were let out of prison, reoffended, and now they’re back in prison.

But the consequences are not limited to Arkansas. This is a nationwide problem and it’s a cause for deep concern. In Utah, a career criminal released by this decision tortured and murdered two teenagers and then threw their bodies down a mineshaft. A released career criminal in California allegedly murdered his father, carjacked a vehicle and killed the driver. In Oregon, a released career criminal held a Subway sandwich shop hostage and then shot a police officer just 18 days after he was released.

Sadly, I could go on and on. So why did this happen? The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times.

This is the law that requires a minimum 15- year sentence for felons caught with a firearm after their third violent felony or serious drug trafficking conviction.

These are not the mythical “low-level, nonviolent drug offenders,” who we are always told are being excessively imprisoned. These are criminals who have already committed multiple serious offenses and then were caught with a gun.

This is no little matter. In 2016, the U.S. Sentencing Commission found that nearly seven out of ten career criminals reoffended after being released. Federal firearms offenders were found to be the most likely to be rearrested of any category. These criminals are both. They are career criminals and firearms offenders. I was a United States Attorney before the Armed Career Criminal Act — and I was United States Attorney afterward. I’ve seen its importance firsthand as we worked to reduce crime in America.

Nationwide, the Supreme Court’s decision has resulted in more than 1,400 violent career criminals back onto our streets — including 18 here in Arkansas. Nine of these Arkansas criminals have already been arrested again.

Six-hundred of those 1,400 criminals have been arrested again. It’s only been three years since the Court decision, but 42 percent have already reoffended.

On average, these 600 criminals have been arrested or reoffended three times in the last three years. A majority of those who have been out of prison for just two years have been arrested again. Releasing repeat offenders has consequences. Every crime committed by a recidivist released by this court case would not have happened. Every one of their victims would not have been victimized.

We must fix the law so violent career criminals are not let out of jail early. Their recidivism rate is staggering indeed, but let’s remember: this is still likely an underrepresentation of their illegal activity. Any law officer in this room will tell you that criminals rarely get caught on their first offense. We can only imagine how many crimes they have really committed and how many innocent people they have victimized.

Releasing hardened criminals into our communities before they serve their minimum term is not fair to crime victims. And it is not fair to law enforcement. You shouldn’t have to go into danger time and again to arrest the same people.

Congress and our legislatures need to help us and consider legislation that protects the public. We need Congress to fix the law so that we can keep violent career criminals off of our streets. That shouldn’t be controversial.

Fortunately, some Members of Congress are helping. My good friend Senator Cotton understands this issue. He is working on legislation that is intended to fix this problem for good — and I want to thank him for his outstanding leadership on criminal justice issues.

We should look for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

I agree with Attorney General Sessions that we need a Johnson fix and more.  Reform to the Armed Career Criminal Act is long overdue (Justices Scalia and Alito have bemoaning ACCA problems and urged Congress to act for many, many years before Johnson).  Beyond just the vagueness problem Johnson addressed, there are deeper problems with the entire structure of the Armed Career Criminal Act, particularly its reliance on a severe mandatory minimum prison term (of 15 years) for the mere act of possessing a firearm or ammunition. Consequently, I do not think a mere Johnson fix to ACCA will be a fully sound or effective response to the genuine concerns flagged by AG Sessions.

In a future post, I hope to be able to discuss the specifics of Senator Tom Cotton's approach to fixing ACCA.  For now, I will just suggest it will be interesting to see if anyone in Congress will be willing to try to roll an ACCA fix into existing criminal justice reform proposals that are now seemingly languishing on the Hill.

August 1, 2018 at 01:21 PM | Permalink


The press release I saw (over at Crime and Consequences) indicated that Sen. Cotton's proposal was to make all "serious felonies" ACCA predicates, with "serious felony" defined as any offense punishable by a prison term of 10 years or more. This would of course radically expand the scope of the ACCA.

Posted by: Anon AFPD | Aug 1, 2018 2:06:23 PM

The problem with CJ reform in the current culture is not a lack of agreement on the whether the system is broken. Most people agree it is broken. The difference is that some people think its broken because it is too lenient and others think it is broken because it is too harsh. Neither side can get a majority for its views so we get a mishmash of things.

Posted by: Daniel | Aug 1, 2018 3:42:01 PM

I would note from my experience in my own state with our enhancement statute that a major problem with all enhancement statutes is "foreign" convictions. (Foreign in the sense of being another government, not another country.) Because each state and the federal government get to define crimes in their own unique ways, there is no such thing as a "garden variety" burglary, arson, or kidnapping. There may be certain types of conduct that fit into those statutes in most jurisdictions, but every state is going to have its little quirk of additional conduct included in those statutes or conduct that is excluded from those statutes.

One potential solution is to define it based on the "home" jurisdiction's statutes. In other words, the conduct of conviction (based on the charging document and the conduct "admitted" to by the plea) counts if it would constitute the qualifying offense if committed within the territory of the home jurisdiction (or for the federal government having the jurisdictional nexus, e.g. effecting interstate commerce). While not perfect, it at least creates a real definition for the offense -- a California burglary would be a federal burglary if the actual offense met the requirements of the U.S. Code for the federal offense of burglary versus courts making up a definition of burglary as they go along.

Posted by: tmm | Aug 1, 2018 5:59:31 PM

The sooner the interstate commerce clause dies a bloody horrible death as justification for federal criminal laws, the better. A whole lot of civil laws, too.

Posted by: Fat Bastard | Aug 2, 2018 12:08:47 AM

I don't see any problem with harsh penalties for possession of a firearm for a class of repeat criminals.

I agree that the definition should be as clear as possible.

Posted by: William Jockusch | Aug 7, 2018 9:00:36 PM

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