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November 27, 2023

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

November 27, 2023 at 09:37 PM | Permalink


What kind of legal system do we have where judges can say "we don't like that Congress has mandated long sentences, so we will use our power to interpret that statute to preclude imposition of those sentences?" Imagine judges did that with laws permitting abortion on demand?: "We don't like these laws so we're going to interpret them as narrowly as possible."

Posted by: Da Man | Nov 28, 2023 11:50:26 AM

At issue in these cases, Da Man, are the uncertain terms under which "Congress has mandated long sentences." Nobody seems to seriously claim that the ACCA statute written by Congress is clear, and so the issue is what to do in the face of the statutory uncertainty.

Congress could amend the statute to make it clear as to just when the long sentences were required, and then judges would surely follow the clear statutory law. Notably, Justice Alito way back in 2009 urged Congress to "formulate a specific list of expressly defined crimes that are deemed to be worthy of ACCA’s sentencing enhancement," which he called "the only way to right ACCA’s ship." Chambers v. United States, 555 U.S. 122 (2009). Unfortunately, Congress has failed to make ACCA clear, and that puts courts in this position of having to figure out what path to navigate the ship that Congress has failed to right for decades.

Posted by: Doug B | Nov 28, 2023 2:09:29 PM

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