Supreme Court Reaffirms “Categorical Approach” in Applying Armed Career Criminal Act

Has Congress ever made the federal courts do more work to little so good effect than it did when it passed the Armed Career Criminal Act in 1984?  The ACCA imposes a fifteen-year mandatory minimum on certain federal defendants who have three prior convictions for a violent felony or serious drug crime, which are defined terms in the statute.  The basic application problem is that we have fifty different state criminal codes, and state legislatures never saw fit to amend their laws so as to fit their crime definitions to the ACCA terminology.  As a result, figuring out which state convictions count as ACCA predicates has consumed — and continutes to consume — an enormous amount of judicial time and effort.  A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.

The Supreme Court offered its latest foray into the ACCA quagmire yesterday in Descamps v. United States (No. 11-9540).  At issue was whether Descamps’s prior burglary conviction in California could be used as a predicate for the fifteen-year ACCA mandatory minimum.  The statutory definition of “violent felony” does include “burglary,” but the Court has previously held that not all burglary convictions count; rather, the crime of conviction must have the elements of “generic burglary” — if a state has chosen to define the crime of burglary in an unusually broad manner, then convictions of burlgary in that state may not be treated as burglary convictions for ACCA purposes.

And it turns out that California does have an idiosyncratic burglary definition.  (more…)

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Sentencing Commission Criticizes Mandatory Minimums in Comprehensive New Report

What more is there to be said about mandatory minimums?  Everyone already knows they are bad sentencing policy.  Pursuant to congressional directive, however, the U.S. Sentencing Commission last week issued a comprehensive new report on federal mandatory minimums.  I doubt it’s a game-changer, but the report does include a wealth of interesting new data.

First, though, there are the Commission’s recommendations.  Here are the (eminently sound) overarching recommendations:

A strong and effective sentencing guidelines system best serves the purposes of the Sentencing Reform Act. . . . If Congress decides to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, the Commission believes that such penalties should (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. Sentencing data and interviews with prosecutors and defense attorneys indicate that mandatory minimum penalties that are considered excessively severe tend to be applied inconsistently.  (xxx)

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Mandatory Minimums and the Supreme Court

I posted a few months ago on Erik Luna and Paul Cassell’s insightful article on mandatory minimums in the Cardozo Law Review.  Cardozo’s on-line journal, de novo, has just published my more extended response to Luna and Cassell: “Mandatory Minimums: Don’t Give Up on the Court,” 2011 Cardozo L. Rev. de novo 67.  Here is a taste from the introduction:

Erik Luna and Paul Cassell have given us an extraordinarily thorough and persuasive treatment of an important topic. I have little doubt that the world would be a better place if Congress heeded their advice and adopted the reforms they propose for federal mandatory minimum sentencing laws.2 Will Congress actually do so? Drawing on an eclectic mix of insights from behavioral science, political science, and legal theory, Luna and Cassell present a case for guarded optimism. On the other hand, in his insightful response to Luna and Cassell, Ronald Wright identifies various institutional features of congressional decisionmaking that seem likely to blunt the gathering momentum for mandatory minimum reform. Whether or not Wright is ultimately too pessimistic regarding Congress, his argument should cause us to consider whether other branches of government might realistically be expected to fill the void created by legislative inertia and timidity.

For instance, what about the Supreme Court—might the Court play a meaningful role in paring back the penal excesses of our federal mandatory minimums? Luna and Cassell dismiss the possibility. They write, “[T]he Supreme Court’s jurisprudence in this area, described by some as an abandonment of the field, makes clear that judicial review will not provide much of a check on excessive punishment. . . . [S]ignificant reform will come, if at all, by Congress.”

They may reach this conclusion too quickly. Their analysis is based entirely on the Supreme Court’s Eighth Amendment jurisprudence. However, they disregard an emerging body of statutory interpretation jurisprudence in which the Court has acted with surprising boldness in narrowing the scope of the Armed Career Criminal Act, one of the most draconian of the federal mandatory minimum statutes. The ACCA cases suggest that the Court may be more willing to regulate mandatory minimums through statutory than through constitutional interpretation. More speculatively, another very recent decision, United States v. O’Brien, may point the way to more robust procedural regulation of mandatory minimums, including a right to have a jury find the facts that trigger a mandatory minimum beyond a reasonable doubt.

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Seventh Circuit Says Begay and Chambers Must Be Applied Retroactively

Retroactivity has been in the news a lot lately, thanks to the U.S. Sentencing Commission’s ongoing consideration of whether to give already-sentenced defendants the benefit of more favorable crack guidelines. But crack defendants are not the only inmates serving extraordinarily long terms based on recently discarded aspects of federal sentencing law.  Earlier this week, the Seventh Circuit approved retroactivity for another category of such inmates in Narvaez v. United States (No. 09-2919).

The Supreme Court’s recent decisions in Begay and Chambers substantially narrowed the reach of the Armed Career Criminal Act’s fifteen-year mandatory minimum.  (For background, see this post.  Ironically, shortly after Narvaez was decided, the Court issued its opinion in Sykes v. United States, which seemed to back away from Begay.)  Five years before Begay, Luis Narvaez pled guilty to bank robbery and was sentenced as a career offender under the sentencing guidelines based on his prior convictions for “violent felonies,” including two convictions for failure to return to confinement in violation of Wis. Stat. § 946.42 (3)(a).  Later, in Chambers, the Supreme Court ruled that the Illinois crime of failing to report for confinement did not count as a “violent felony.”  Narvaez then filed a motion under 28 U.S.C. § 2255 to vacate his sentence in light of Chambers.  The district judge held that Chambers did not apply retroactively, but granted Narvaez a certificate of appealability.

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Court Decides Sykes, Backs Away From Begay

Is the Begay revolution over?  In its 2008 decision in Begay v. United States, the Supreme Court adopted a narrow construction of the Armed Career Criminal Act’s “residual clause,” limiting the ACCA’s reach to convictions for “purposeful, violent, and aggressive” crimes.  (For background, see this post.)  The following year, in Chambers v. United States, the Court again pared back the residual clause, emphasizing the need to demonstrate the objective dangerousness of an offense for it to count as a trigger for the ACCA’s fifteen-year mandatory minimum sentence.

What many observers took from Begay and Chambers is that a prior conviction does not count under the ACCA unless it satisfies both a subjective test (purposeful, violent, and aggressive) and an objective test (statistically demonstrated likelihood of injury).

But, today, in Sykes v. United States (No. 09-11311), the Court threw this understanding into doubt, suggesting a considerably more expansive interpretation of the residual clause.

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SCOTUS Rules That Current Penalties Do Not Govern Whether Prior Conviction Is ACCA Predicate

I continue to be mystified by the Supreme Court’s jurisprudence on the Armed Career Criminal Act.  The Court has been remarkably active in taking ACCA cases in recent years, but I’m hard-pressed to see much coherence in the outcomes.  On the one hand, there is the Begay line of cases, which have substantially narrowed the definition of “violent felonies” that can be used as a predicate for the ACCA fifteen-year mandatory minimum.  (For background, see my post here.)  Yet, there are plenty of other ACCA cases — many involving short, unanimous decisions, as if the underlying legal issues were entirely unproblematic  — that adopt unnecessarily expansive interpretations of the ACCA triggering language.

Count the Court’s decision today in McNeill v. United States (No. 10-5258) in the latter category.

Here’s the background on McNeill from an earlier post:

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Sykes Oral Argument: Clarification of Culpability Requirement May Have to Wait

The Supreme Court heard oral argument last week in Sykes, the ACCA case.  In an earlier post, I expressed the hope that the Court would use Sykes as an occasion to clarify what culpability is required for a prior conviction to count as an ACCA predicate.  Having now read the argument transcript, I think it is possible that the decision could go off in a number of different directions without adding much clarity to the culpability question.  The transcript also leaves me uncertain about the head count, although Justice Scalia seemed pretty clearly to favor the defendant’s position and Justice Alito the government’s.

Scalia seemed surprisingly receptive to the defendant’s argument that his Indiana fleeing conviction should not be treated as one involving a “serious potential risk of physical injury to another” because Indiana has a separate offense for fleeing that creates a substantial risk of bodily injury.

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SCOTUS Takes Another ACCA Case

The Court hasn’t even heard argument in Sykes, but on Friday agreed to take yet another ACCA case this term.  It’s astonishing how much SCOTUS litigation has been spawned in the past handful of years by this one, relatively brief criminal statute.

The new case, McNeill v. United States (No. 10-5258), deals with a different bit of statutory language than Sykes.  While Sykes involves the meaning of the term “violent felony,” McNeill centers on the interpretation of “serious drug offense.”  Although most of the recent cases focus on “violent felony,” McNeill is by no means the Court’s first encounter with “serious drug offense.”

Here’s what happened in the new case.

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Sykes Preview, Part II

I’ll pick up where I left off in yesterday’s post.  Sykes was convicted of the Indiana crime of using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop.  Was this a “violent felony”?  The Seventh Circuit held yes, although at least one other circuit has concluded that a similar crime was not.

In Chambers, the Court was able to avoid answering any hard questions about the culpability required for an offense to count as a “violent felony” because the offense at issue in that case did not satisfy the requirement of objective dangerousness.  The Court is less likely to reach a similar conclusion in Sykes.

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Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).

(more…)

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