Ruling Against “Three Strikes” Sentencing Law Opens Door to Reform

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Friday’s Supreme Court decision in Johnson v. United States highlights the complicated nature of sentencing provisions that result in lengthy prison terms, a leading cause of mass incarceration. The ruling struck down a sentencing provision that lengthened prison terms for certain federal prisoners and potentially impacts the lives of thousands of people who have received enhanced federal sentences.

Stakeholders interested in practical remedies to address the nation’s incarceration rate should closely consider the ruling and look for opportunities to remedy similar laws. The case before the court was filed by Samuel James Johnson, a white nationalist affiliated with the Aryan Liberation group. He was convicted of gun crimes and received a 15-year prison term because the sentencing judge considered a past conviction for possession of a sawed-off shotgun as a “violent felony.”

While this case presents an argument on behalf of a defendant whose conduct is disturbing in many ways, it nonetheless raises issues that should be of concern for the values of due process and investment of public safety resources.

In an 8-1 decision, the court, led by conservative Antonin Scalia, found a salient provision of the Armed Career Criminal Act (ACCA), which lengthens sentences for people with three prior serious drug crimes or “violent” felony convictions, to be unconstitutionally vague. The provision lengthened federal prison terms on average to 188 months from 59 months.

The discretion granted to prosecutors and judges to decide what counted as a “violent felony” was found to be unclear.

According to the United States Sentencing Commission, there are approximately 7,000 individuals imprisoned for ACCA-enhanced sentences, and although most are not sentenced under the residual clause, others may be eligible for resentencing; more than half of defendants who received enhanced sentences in 2014 were African American.

The sentencing structure that resulted in Johnson’s prison sentence evolved during the “tough crime” era, in which mandatory minimums, truth-in-sentencing laws and recidivist statutes were adopted to lengthen prison sentences. California’s notorious “three strikes” law is perhaps the most well-known “recidivist” or “persistent offender” statute that allows for life prison terms for defendants, who have two prior felony convictions, on their third felony conviction.

Defendants can also receive longer prison terms depending on the location of the crime; most states and federal sentencing structures allow for enhancements in cases of drug crimes that take place near schools. Other circumstances resulting in longer prison terms include a prior conviction, even if the previous offense was a misdemeanor, and possession of a weapon, even if not used.

Interpretation of the Armed Career Criminal Act expanded prosecutorial authority to enhance sentences for any crime that involved “conduct that presents a serious potential risk of physical injury to another” – even if the crime doesn’t actually involve violence.

The practical implementation of that interpretation resulted in prosecutors enhancing prison terms (as in the case of Johnson, for the possession of a sawed-off shotgun). The Armed Career Criminal Act was reportedly used to lengthen prison terms in cases where defendants had priors considered “violent” for drunk driving, attempted burglary and failing to report for incarceration.

The Johnson ruling reinforces the need to address sentencing policies that lengthen prison terms and have contributed to growth in the nation’s incarceration rate. Similar provisions are present in state criminal codes and lead to harsher penalties. In Missouri for example, persons convicted under the Armed Criminal Action laws provision – when the defendant is in possession of a dangerous weapon – serve a mandatory sentence of three years in addition to the penalty for the crime of conviction.

Sentencing enhancements were adopted to serve several purposes, including deterrence. Yet, research demonstrates that offenders “age out” of crime – so the 25-year-old who commits an armed robbery generally poses much less risk to public safety by the age of 35.

At the federal level, to implement the court’s ruling, Congress can address sentencing enhancements that lengthen statutory punishments.

There are opportunities to revisit similar policies at the state level for stakeholders interested in addressing mass incarceration. Lawmakers could repeal sentencing enhancement laws and allow judges to depart from statutory minimums. Nevada, for example, granted discretion to judges to impose shortened enhanced sentences for eligible offenses. Prior to the law change, a person convicted of a felony committed on school property would face the statutory punishment for the charged conduct, plus a sentence enhancement equal to the statutory punishment.

Prosecutors should alter their approach to charging defendants with penalties that result in excessive prison terms. In recent years, prosecutors in New York and Milwaukee have modified their charging practices in ways that contribute to declines in prison admissions.

The court’s decision in Johnson, while substantial for federal sentencing matters, raises opportunities for state stakeholders as well. The nation’s high rate of incarceration is a challenge to lawmakers, advocates and practitioners to reform sentencing policies that have contributed to mass incarceration.