« Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions | Main | "A Reparative Approach to Parole-Release Decisions" »

September 15, 2018

Reviewing the continued ugly realities of the application of the Armed Career Criminal Act

Running this week at The Appeal is this notable piece with stories and data on the application of the federal Armed Career Criminal Act.  The piece is headlined in full "Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years: Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief." I recommend the piece in full, and found this data discussion especially interesting:

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA.  The ruling found part of the act to be unconstitutionally vague — it wasn’t clear what qualified a defendant as a “career criminal.” The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors’ ability to seek ACCA-enhanced sentences, and U.S. attorney’s offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes....

Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting.  Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions.  Florida had 61; Missouri had 29 and Tennessee had 26.  Washington state had one ACCA prosecution in 2016.

“It is incredibly arbitrary,” said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences.  “One of the ideas behind mandatory minimums … is that they increase the certainty of punishment,” Gill told The Appeal. “When you look at how the law’s applied, that’s really not true.”

Black defendants are far more likely to receive ACCA-enhanced sentences.  According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black.  Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.

Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal. “You said … because there are so many years involved, people will litigate hard,” Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing.  “I think because there are so many years involved, people won’t litigate at all. … It gives so much more power to the prosecutor in the plea negotiations.”

About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.

September 15, 2018 at 09:46 AM | Permalink


Okay, there were 300-some offenders sentenced under the ACCA, how many faced that as a possibility going in to plea negotiations? Without that datum how many such sentences were eventually meted out is not particularly informative.

Posted by: Soronel Haetir | Sep 15, 2018 11:51:56 AM

A good point, Soronel, and this July 2018 publication by the USSC provides some broader data for FY 2017:

This report indicates "In fiscal year 2017, there were 6,032 offenders convicted under 18 U.S.C. § 922(g) ... [but only] 4.4% were sentenced under the Armed Career Criminal Act (ACCA)." We cannot say for sure that all or even most 922(g) defendants could be subject to ACCA, but I suspect more than 4.4% arguably are. That said, the application of ACCA does not turn on the charges or plea particulars in the way some other MMs can. There are cases in which the defendant and prosecution do not know ACCA will be applied until a presentence report is prepared showing qualifying criminal history.

The USSC publication alse shows just why the stakes are so high in ACCA's application: "The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 188 months. The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 58 months." In other words, for the exact same current criminal behavior of possessing a gun illegally, ACCA on average adds nearly 13 years(!) to the applicable prison term! (Because their criminal histories are different, the ACCA population are likely a (slightly?) more "hardened" criminal. But the problem with ACCA is that technicalities, not what a defendant really did in the past, often shapes ACCA's application.)

Posted by: Doug B | Sep 16, 2018 11:00:14 AM

Taking a utilitarian view of this, I think a focus on criminal history in sentencing is highly appropriate. But I think it should be a gradually increasing function, rather than the sudden jump provided by the ACCA.

Perhaps the sentencing table should treat each criminal history level as the equivalent of two offense levels, rather than one. This would result in more time for repeat offenders, which has to be the general intent of the ACCA, while removing the sudden jump in the sentence if certain criteria are met.

I think that a proposal along the lines of "get rid of the ACCA, but replace it with [something like the above proposal]" would be more likely to succeed in the long run than simply getting rid of the ACCA with no replacement. In the former case, voters might look at it and say "they made the system more rational". In the latter case, what is likely to happen is that some heinous crime is committed by someone who would have been in prison under the ACCA, voters get angry, and an even harsher provision is passed as a result.

Posted by: William Jockusch | Sep 16, 2018 6:42:25 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB