A comprehensive administrative solution to the Armed Career Criminal Act debacle.

Author:Kupfer, Avi M.

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime. This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.

TABLE OF CONTENTS INTRODUCTION I. Confusion Applying the ACCA A. The Categorical Approach B. The Modified Categorical Approach C. The Residual Clause's Competing Interpretations II. The Negative Consequences of Judicial Delegation A. Court, Defendant, and Prosecutor Resources B. Implications for Defendants C. The ACCA's Potential to Deter Crime III. The ACCA Appendix A. Delegating to an Agency 1. Policy Considerations for Deferring to an Agency 2. The U.S. Sentencing Commission's Role B. Predicate Offenses C. Working with the States D. Other Agency Delegation Solutions E. Resolving Related Issues CONCLUSION INTRODUCTION

The Armed Career Criminal Act ("ACCA"), a federal criminal sentencing statute codified in a few brief sentences, has attracted substantial attention from the Supreme Court. Most ACCA cases would probably never be appealed were it not for the statute's life-altering impact--a fifteen-year mandatory minimum sentence for felons found in possession of a firearm or ammunition who have three previous convictions for a "violent felony" or "serious drug offense." (1)

Although judges sentence relatively few offenders under the statute, (2) frustrated courts, defendants, and prosecutors expend considerable resources on ACCA trials and appeals. (3) Broad and imprecise statutory language as well as cryptic Supreme Court interpretations have predictably created confusion over the ACCA's scope. As a result, defendants routinely challenge its application. Even among offenders convicted of crimes carrying mandatory minimum penalties--a group that proceeds to trial at nearly twice the federal average for criminal defendants (4)--those sentenced under the ACCA are nearly three times as likely to get to trial. (5)

The ACCA's ambiguous reach stems mainly from uncertainty over which convictions count as ACCA predicate offenses. Three convictions for a "violent felony" or "serious drug offense" qualify felons in possession for sentencing under the ACCA, (6) but the statute imprecisely defines these terms, and there is particular confusion about the meaning of a violent felony. The ACCA lays out two ways that a conviction can be a violent felony predicate offense. It can have an element that involves "the use, attempted use, or threatened use of physical force against the person of another." (7) Alternatively, it can be "burglary, arson, or extortion, involve [] use of explosives, or otherwise involve [] conduct that presents a serious potential risk of physical injury to another." (8) The "otherwise" catchall tacked onto the second prong of the violent felony definition is known as the residual clause. Its breadth is a source of substantial judicial confusion and academic debate. (9)

Unclear guidance from the Supreme Court on how sentencing courts should decide when a given conviction counts as an ACCA predicate offense contributes to the statute's ill-defined outer limits. The Court has directed federal judges to use a categorical approach to resolve whether a past conviction qualifies as an ACCA predicate. Thus, sentencing courts must determine if the elements of the statute under which the offender was convicted--rather than the underlying behavior that resulted in that conviction--amount to a violent felony or serious drug offense. This creates the potential for significant variance among lower courts. (10)

The related issue of the methods that sentencing courts use to decide whether a statute categorically qualifies as an ACCA predicate has generated similar uncertainty. The Court has held that when a single statute contains alternative elements, judges may use a modified version of the categorical approach to establish whether the conviction was for an ACCA predicate offense, a method that allows judges to consult certain court documents from the previous conviction. (11) But the Court is still responding to complications in applying this modified categorical approach. Just last year, it held in Descamps v. United States that the modified approach should be used only when a single statute explicitly lists alternative elements. (12)

Despite the serious consequences that confusion over the ACCA creates for courts, prosecutors, and defendants, (13) Congress has not demonstrated an interest in narrowing or better defining the statute's scope. (14) Yet ACCA scholarship that does not enter into the broader debate on the normative value of mandatory minimums (15) largely focuses either on reading the tea leaves of Supreme Court opinions or suggesting piecemeal statutory improvements. (16) No one has advocated for a comprehensive solution to the ACCA quandary. Perhaps the most far-reaching proposal has come from Justice Alito: in a recent concurrence, he recommended that Congress create a list of crimes that count toward the ACCA's sentencing enhancement. (17) Although it remains an incomplete solution, (18) Justice Alito's suggestion reflects the need for more clarity about which felonies count as ACCA predicate offenses.

This Note proposes such a comprehensive solution. In order to compile a binding list of statutes that qualify as predicate felonies under the ACCA, Congress should delegate the task to a federal agency working in tandem with state actors. The Note outlines this proposal in three stages. Part I recounts the confusion created by delegating the ACCA's interpretative authority to judges. As Part II discusses, this confusion has resulted in negative consequences for courts, prosecutors, and defendants, and it vitiates the statute's ability to deter violent crime. Part III then argues that, given the unlikelihood that Congress will repeal, narrow, or clarify the ACCA itself, it should delegate to a federal agency the task of defining what counts as a predicate offense--a move that would substantially reduce the current system's negative consequences. Specifically, Congress should direct the U.S. Sentencing Commission to compile an appendix of every state felony that qualifies as an ACCA predicate, with assistance from the states in providing initial nonbinding guidance on ambiguous statutes. Finally, Congress should take advantage of this ambitious initiative to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.


    This Part discusses the major sources of confusion over which statutes qualify as predicate offenses under the ACCA. Section I.A explains why, under the categorical approach, ex ante certainty about whether a given statute is an ACCA predicate is improbable. The inevitable result is intercourt disparities in how similar offenses are treated. Section I.B demonstrates that unanswered questions about applying the modified categorical approach could also lead to disparate results. Lastly, Section I.C shows that the residual clause's scope is unclear because the Supreme Court has inconsistently defined a violent felony under the ACCA.

    1. The Categorical Approach

      When Congress passed the ACCA as part of the Sentencing Reform Act of 1984, it did not include directions on how judges should decide whether the previous convictions of a felon in possession were violent felonies or serious drug offenses. (19) In 1990, the Supreme Court attempted to provide clarity for courts by directing them to use a categorical approach when sentencing under the ACCA. (20) The categorical approach itself is a simple concept. Sentencing courts consider the elements of the prior statute under which the felon in possession was convicted--rather than the behavior that resulted in the conviction--and decide if the statute categorically amounts to a violent felony. (21)

      Applying the categorical approach to criminal activities that are actually enumerated in the ACCA is relatively straightforward. In Taylor v. United States, the Court had to consider whether conviction under a particular burglary statute amounted to the ACCA predicate offense of burglary. (22) It asked whether the statute in question carried the "basic elements" of burglary's "uniform definition" in the "generic sense." (23)...

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