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January 15, 2019

Via distinctive 5-4 vote, SCOTUS concludes Florida robbery satisfies "physical force" requirement as Armed Career Criminal Act predicate

In this post last year, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  This cheeky question flows from the challenges and frustrations that surround trying to figure out which prior convictions do and do not serve as predicates for application of the federal Armed Career Criminal Act's 15-year mandatory minimum term.  And today the Supreme Court added still more color to its modern ACCA jurisprudence by handing down its decision in Stokeling v. US, No. 17-5554 (S. Ct. Jan. 15, 2018) (available here).  Here is how the majority opinion in Stokeling, authored by Justice Thomas, gets started:

This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i).  We conclude that it does.

Here is how the sole dissenting opinion in Stokeling, authored by Justice Sotomayor, gets started:

In Johnson v. United States, 559 U.S. 133 (2010), this Court ruled that the words “physical force” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as “force” for purposes of the common-law crime of battery.  Id., at 139–140.  This case asks whether Florida robbery requires such “physical force,” and thus qualifies as a “violent felony” under the ACCA, even though it can be committed through use of only slight force. See §924(e)(2)(B).  Under Johnson, the answer to that question is no.  Because the Court’s contrary ruling distorts Johnson, I respectfully dissent.

Among the reasons ACCA jurisprudence looks like a hellscape to me is that the 2010 Johnson case being debated in this ACCA case is different from the 2015 Johnson case that declared part of ACCA unconstitutionally vague.  (In The Good Place there are lots of Janets; in the ACCA bad place, it seems, there are lots of Johnsons.)

I may have more to say about the substance of the opinions in Stokeling in a future post, but for now I will conclude my highlight the unique line-up of Justices in the 5-4 split of votes:

THOMAS, J., delivered the opinion of the Court, in which BREYER, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., and GINSBURG and KAGAN, JJ., joined

Because Justice Kavanaugh is new to the mix, it is not saying much to say this is the first time this group of Justices have come together this way.  But I cannot recall many cases in which the Chief Justice was a fourth vote for a criminal defendant but Justice Breyer served as the key fifth vote for the government.  Interesting times.

January 15, 2019 at 02:15 PM | Permalink


Sotomayor's opinion has an artificial quality to it. But it ultimately fails---she whines, unconvincingly, that conduct barely above pick-pocketing is robbery. Well, guess what, it is robbery. Sotomayor's opinion posits some sort of common-law not quite robbery because her sense of being nice to criminals is offended.

It's really a bunch of drivel masquerading as vigilance in the protection of the rights of criminals. (Note: this is a sentencing enhancement, so the fair warning issues are, or should be, attenuated.)

Posted by: federalist | Jan 15, 2019 7:38:02 PM

Federalist, this case is not really about the “rights” of defendants, it has to do with statutory interpretation.

Posted by: Doug B | Jan 16, 2019 12:44:36 AM


First of all, read Sotomayor's dissent---the poor criminal who violated a robbery statute that wasn't really robbery in all cases is the sort of nitpicking that reflects the "criminal's rights" ethos that permeates her thinking.

Second of all, last I checked, there is a right to be sentenced according to the law, no?

Posted by: federalist | Jan 16, 2019 8:37:43 AM

The issue in Stokeling is whether Florida robbery counts as a predicate for ACCA in the wake of Congress passing a new version of the statute that expressly took out "robbery" as crime specifically enumerated as always an ACCA predicate. The dissent (which is joined by the Chief Justice and others) is not saying the criminal did not really commit robbery, it is saying that low-level robberies as defined in Florida would not seem to be the kind of "violent felonies" that ACCA uses as predicates for a 15-year mandatory-minimum sentence in federal prison.

I do not disagree that a pro-defendant perspective informs the dissent, but I also think anyone who believes Congress should have to be clear when imposing 15-year minimum term should be supportive of this kind of perspective in this instance. Justice Scalia was a particular champion of the importance of Congress being clear in criminal statutes, and it is interesting to speculate about how he would have ruling in this case (as he was, of course, the author of both big Johnson cases limiting the reach of ACCA.)

That said, if rights of defendants were truly paramount in this setting, the dissent could (and I think should) have make more of the rule of lenity. Also, I think there are a range of constitutional problems with broad applications of ACCA.

I do not want to get into a semantic debate over the term "rights" here. I just wanted to note that this case was not about the reach or application of the Fifth or Sixth or Eighth or 14th Amendments or other constitutional rights, but rather just about whether one embraces a broader or more limited view of what Congress defined as ACCA predicates. I think both sides in Stokeling get in some good points, and in some sense you are right that pro-government or pro-defendant views surely color this issue of statutory interpretation. And that reality itself makes it even more notable that Breyer joins the majority while Roberts joins the dissent(both of them were in with the Scalia majority in 2010 Johnson).

Posted by: Doug B | Jan 16, 2019 10:44:23 AM

Roberts joins the dissent likely because he believes in stare decisis and the integrity of the court. Breyer has been against the categorical approach championed by Scalia from the beginning. (he also was against finding the mandatory guidelines unconstitutional). This is why mandatory minimums are a bad idea. States call similar crimes different things and have wide ranges of conduct covered by the same label. They often have inadequate pretrial protections or defender staff and coercive detention and bail procedures. Many plead "to go home." And then those priors are used to radically increase the penalty for a non-violent status offense.

Posted by: defendergirl | Jan 16, 2019 4:39:39 PM

Doug, you're the one who started the "semantic' debate. My point was the tone of Sotomayor's silly dissent. At the end of the day, there are two rocks upon which the "wise [sic] Latina's" opinion: (1) there are are two common-law crimes at issue: larceny and robbery. There's no larceny-plus or robbery minus--rather there are two crimes, larceny and robbery, and (2) the border between the two does not admit of a bright line. This means that while there is necessarily a gray area, that doesn't mean that there's some separate category of not quite robbery but a little more than larceny which takes the predicate out of "robbery." In other words, the inability to determine the precise boundaries of "robbery" (i.e., how much force is too much) with scientific exactitude is just impossible. Different people are going to make different judgments, and we don't hook up defendants on that basis. That's just expecting too damned much.

Of course, if Sotomayor were adjudicating some issue of race preferences (i.e., a situation which impacts innocent people's rights are harmed), you can bet your bottom dollar that she wouldn't be anywhere close to fastidious.

defendergirl: Mandatory minimums may be overused and too harsh---but that does not mean that mandatory minimums are per se a problem. Your statement means that you'd be chill with malice murder being subject to an indeterminate sentence. If that's what you think, say so.

Posted by: federalist | Jan 16, 2019 8:53:01 PM

federalist, your otherwise reasonable point fails to grapple with the fact congress took robbery out of the ACCA statute as an always predicate. That suggests Congress expected and wanted parsing of different variations of robbery along the lines that the dissent suggests. I know you are not a fan of Sotomayor, but she is arguably being more faithful to precedent than the majority. The Chief Justice clearly thinks she is.

Posted by: Doug B | Jan 17, 2019 8:38:23 PM

Doug, this is not really a part of the present case, but from a policy standpoint, what would you think of getting rid of the ACCA in return for approximately doubling the impact of criminal history at sentencing? In other words, make each criminal history point the equivalent of an offense level.

Posted by: William Jockusch | Jan 18, 2019 7:02:23 PM

William, we could and should easily fix core ACCA problems by raising the max sentence for basic felon is possession up from 10 to 15 (or 20), and lowering the minimum for ACCA down to 10. Though I do not like mandatory minimums generally (and so would generally be eager to get rid of ACCA altogether), the need to litigate every little detail of every ACCA prior would be diminished greatly by this fix. DOJ is cases involving long rap sheets would say even if ACCA is not satisfied, this guy merits at least 10 and up to 15 or 20. And judges could make alternative findings: I think this guy has enough ACCA predicates that requires 10, but I'd give 12 (or whatever) either way.

Even more lenient judges tend to be more likely to sentence severely offenders with serious criminal history. Not clear why we'd need to change this part of the guidelines.

Posted by: Doug B | Jan 19, 2019 2:06:10 PM

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