Formal, categorical, but incomplete: the need for a new standard in evaluating prior convictions under the Armed Career Criminal Act.

• Author: Lamprecht, Krystle

1. INTRODUCTION

   Even simple, objective arithmetic becomes tainted with subjectivity when the exercise of discretion governs what is counted. An examination of the current application of the Armed Career Criminal Act, (1) which imposes an enhanced penalty for defendants having at least three prior qualifying convictions, reveals a number of troubling issues regarding the evaluation of such prior convictions. These issues include inconsistency in and among states as to which crimes qualify as predicate offenses and a generally overbroad interpretation of ACCA's predicate conviction requirements. Such problems result in disproportionate sentences, (2) categorization of non-violent or non-repeat offenders as "violent career criminals," (3) reduced effectiveness of ACCA as a deterrent device, (4) and contravention of Congress's express intent that ACCA be read as narrowly as possible. (5)

   Although Congress has narrowed the scope of ACCA, and although courts have attempted to construct a formal categorical approach to evaluating prior convictions in order to eliminate these problems, neither remedy has entirely solved the problem. In the two decades since its establishment, the formal categorical approach to ACCA's substantive elements requirement for prior convictions has failed to result in either the nationwide consistency or the reduction of ACCA's applicability that Congress and the courts have intended.

   Some courts have implied these continued problems indicate that ACCA as currently written is inherently flawed and requires legislative correction. (6) However, ACCA already includes a two-pronged test for the evaluation of prior convictions: any prior conviction must satisfy both a substantive elements requirement and a sentencing requirement. Courts have established a standard for only one of the two prongs--the substantive elements requirement. (7)

   A uniform, generic standard for application of the sentencing requirement would solve many of the problems currently plaguing ACCA. This standard should discount any sentencing enhancements previously applied to prior convictions and should allow consistent evaluation of convictions at the national level, independent of variance in state law.

   Unlike the formal categorical approach to the substantive elements requirement, which takes its generic definitions of offenses from the common law, a formal approach to the sentencing requirement requires a uniform source of sentencing guidelines, as no common law sentences exist for most crimes. (8) This single, uniform source could come from national averages of the sentence ranges currently existing in the criminal codes of most states, or from the U.S. Sentencing Guidelines Manual. (9) In either case, this source would allow courts to apply ACCA's requirements on a national level consistently and with a narrow scope--reducing disproportionality in sentencing, increasing the deterrent effectiveness of ACCA, and accomplishing Congress's goal of selective incapacitation of the worst, most unrehabilitative of career criminals.

2. BACKGROUND

   First enacted in 1984, the Armed Career Criminal Act subjects individuals convicted of illegal possession of a firearm in violation of 18 U.S.C. [section] 922(g) (10) and having three or more qualifying prior convictions to a minimum sentence of fifteen years and a maximum sentence of life imprisonment. Congress modified the scope of qualifying convictions by amending ACCA in 1986 and 1988. (11) Additionally, while ACCA originally made such sentences mandatory, in United States v. Booker the Supreme Court declared mandatory minimum sentences unconstitutional under the Sixth Amendment, making the Federal Sentencing Guidelines advisory. (12)

   In its current form, ACCA provides in relevant part:

   In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (13) ACCA defines "violent felony" as a "crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult[.]" (14) Qualifying crimes are burglary, arson, extortion, or any crime involving "conduct that presents a serious potential risk of physical injury to another" or that "has as an element the use, attempted use, or threatened use of physical force against the person of another[.]" (15)

   Like other statutes targeting recidivists, ACCA has come under fire from critics challenging the constitutionality of the use of prior convictions in determining acceptable punishment for later convictions. (16) Despite such criticisms, however, courts have uniformly held that ACCA complies with constitutional prohibitions against double jeopardy, due process, cruel and unusual punishment, and disproportionality. (17) The critical component of the argument for the constitutionality of ACCA and similar recidivism statutes is that the sentencing enhancements qualify as a "sentencing factor" rather than an element of a separate substantive offense, which would have to be proven before a jury. (18)

   Even assuming ACCA satisfies all constitutional requirements, current application of this statute has led to results inconsistent with the congressional intent behind its enactment. The purpose of ACCA was to provide enhanced penalties for recidivism, with habitual ("career") criminals who had proven resistant to all previous efforts to curb their repeat offending the intended targets. (19) Evidence that "a small number of repeat offenders commit a highly disproportionate amount of the violent crime plaguing America today" served as a primary motivation for the legislation. (20) The report of the Senate Judiciary Committee emphasized the narrow application of ACCA to only "the hard core of career criminals[,]" stating that only a "very small portion" of convictions for the enumerated offenses would receive enhanced sentences under ACCA and stressing that the bill "focus[ed] on the very worst robberies,

   by the very worst offenders with the worst records." (21)

   However, despite these many manifestations of congressional intent with respect to the applicability of ACCA, courts continue to interpret ACCA's requirements for prior convictions broadly, resulting in punishments that seem absurd at best and unconstitutionally disproportionate or in violation of principles of fundamental fairness at worst. (22) Furthermore, despite the 1988 amendment narrowing the range of applicable prior convictions, critics of ACCA and its current application continue to be perplexed by the broad range of criminal convictions that courts declare "violent felonies," and by the vastly increased punishments arising as a result of such classifications. (23)

3. DISCUSSION

   1. EMPHASIS ON A "LAST-CHANCE" APPROACH

      Based on empirical data regarding the prediction of recidivism and the efficacy of rehabilitation, the label of career criminal should be reserved for the smallest possible subset of offenders. In addition to providing the best chance that ACCA will achieve its ultimate goal of reducing recidivism, a narrow interpretation calms fears of constitutionality regarding the proportionality of sentence to crime and is in line with Congress's manifest intention.

      1. Recidivism as a Basis for Increased Sentences

         Consideration of a defendant's prior criminal history has long been a part of American jurisprudence, "dat[ing] back to colonial times." (24) Today, recidivism statutes exist in all fifty states. (25) The Supreme Court has held that such statutes do not violate the constitutional prohibition against double jeopardy, drawing the distinction between heightened penalties for the most recent offense based upon the offender's repeated criminal conduct (which is how the Court views recidivism sentencing enhancements) and additional punishment for the previous crime (which the Court rejects as the motivation for recidivism sentence enhancements). (26) Nonetheless, critics continue to question the constitutionality of such provisions. The results reached under a broad interpretation of ACCA call into question not only whether Congress's intent is served, but also whether such broad application effectively serves any theory of punishment.

         Critics argue that the disproportionality of the recidivism-enhanced sentence to the instant crime is impermissibly large, meaning not only that the instant crime on its own does not justify such a large punishment, but also that the court is re-punishing the defendant for prior conduct. Further evidence of double jeopardy violations is that sentencing enhancements, like those available under ACCA, can often seem to "substantially overshadow[] the underlying punishment." (27)

         These concerns emphasize the need for rigorous scrutiny of whether specific prior convictions qualify for sentence enhancement purposes. A narrow construction of qualifying convictions reduces the likelihood that courts will routinely aggregate past convictions and reach absurd results. (28) If courts do not utilize aggregations of relatively minor convictions to achieve sentences that are grossly in excess of the maximum sentence for those minor convictions themselves, then criminals will be more likely to have the full opportunity for rehabilitation. As a result, ACCA will be viewed less as fundamentally unfair and random, and more as an effective deterrent.

      2. Categorization of Defendants as Career Criminals: A...