OPINION:
As we enter the 2018 midterm season and the attendant legislative interregnum, Congress can and should take bipartisan action to protect us from repeat violent offenders.
In 1984, President Reagan signed into law the Armed Career Criminal Act (ACCA). Under the ACCA, felons convicted of unlawfully possessing a firearm face a mandatory minimum sentence of 15 years if they had three or more prior convictions for a “serious drug offense” or a “violent felony.”
This federal statute, along with other criminal-justice initiatives, including parole abolition, bail reform, and the U.S. Sentencing Guidelines, were passed to address an alarming two-decade increase in violent crime.
As Attorney General Jeff Sessions recently noted, between 1964 and 1980, the number of robberies and rapes tripled, aggravated assaults nearly tripled, and murders doubled.
The ACCA and these other reforms were a resounding success. Between 1991 and 2014, the murder and aggravated-assault rates decreased by half. Robberies decreased by two-thirds and rapes by more than a third.
The U.S. Supreme Court in 2015 dealt a severe blow to the ACCA and violent-crime reduction efforts. In Johnson v. United States, the Court considered whether Samuel Johnson, an avowed white supremacist who had confessed to planning multiple acts of domestic terrorism, should be subject to the mandatory 15-year sentence under the ACCA after pleading guilty to the possession of an AK-47 rifle, several other firearms, and over 1,000 rounds of ammunition as a previously convicted felon.
At issue in Johnson was whether one of the defendant’s multiple prior felony convictions — unlawful possession of a sawed-off shotgun — constituted a “violent felony” under the statute. The Court determined that this prior conviction did not qualify and that Johnson therefore could not face the mandatory penalty.
In reaching this conclusion, the Court held that the ACCA’s so-called “residual clause,” which included, in the definition of a violent felony, offenses that involved “conduct that presents a serious risk of physical injury to another,” was unconstitutionally vague and struck it from the statute.
In the three years since the Supreme Court gutted the ACCA, and in the absence of a “legislative fix,” lower federal courts have struggled to craft and apply a consistent framework for deciding whether — and under what circumstances — various categories of seemingly violent offenses can still be counted towards enhanced penalties.
The results have been inconsistent and absurd. For example, courts across the country have recently held that sexual abuse by forcible compulsion, armed robbery, resisting arrest, assault and battery on a police officer, felony domestic assault, terroristic threatening, interfering with a flight crew, sex trafficking of a minor, conspiracy to commit murder in aid of racketeering, and, perhaps most ironically, using a firearm during and in relation to a crime of violence do not constitute violent crimes.
As Chief Judge of the U.S. Court of Appeals for the Fourth Circuit William B. Traxler, Jr., lamented in a recent case, “And this, finally, is what we have come to: plotting to murder one’s fellow human beings is not a crime of violence. Heaven help us.”
As a result of Johnson and the cases that followed in its wake, federal prosecutors are no longer able to obtain meaningful sentences for repeat violent offenders. That problem is compounded by the fact that, in the three years since Johnson was decided, more than 1400 recidivist offenders have successfully petitioned for early release from prison.
Of those who have been out of prison at least two years, a majority have already reoffended. And as Mr. Sessions recently noted, of the 1400 inmates released in the last three years, 600 have already been re-arrested on average, at least three times. This number is staggering.
Among the Johnson reoffenders who won early release are Jeffrey Giddings, Abe Martinez and Jerrod Baum. In August 2016, following his release from prison, Giddings, who previously had racked up more than 20 convictions between 1991 and his incaceration, shot an Oregon police officer and took two restaurant employees hostage.
In June, Martinez absconded from a Utah half-way house before murdering his 89-year-old grandmother. Earlier this year, Baum, also of Utah, allegedly kidnapped and murdered a teenage couple before throwing their bodies down an abandoned mine shaft. But for Johnson, all of these victims would be alive today.
Over the past several months, Attorney General Sessions, DOJ, and the U.S. Attorney community have attempted to increase awareness in Congress on this critical issue. These initial efforts met with some resistance by members of both parties who generally oppose the application of mandatory minimums in cases involving non-violent drug offenders.
The persistence, however, is beginning to pay off. Many who were initially skeptical about ACCA-reform efforts now correctly realize that punishing recidivist violent offenders has absolutely nothing to do with the application of mandatory minimums in drug cases.
Stated differently, there may be an emerging consensus in Congress that a member can advocate for drug-sentencing reform while taking action to restore the authority of federal prosecutors to target violent career criminals with guns.
It’s time for Congress to act on the ACCA. Unless this important statute is returned to its intended use, we are all less safe.
• Thomas T. Cullen is U.S. Attorney for the U.S. District Court, Western District of Virginia.
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