I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here).  With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law.  The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms.  Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA.  As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum).  The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty.

In Rodriquez, the question was whether the defendant’s prior drug trafficking convictions in the State of Washington counted as convictions for a “serious drug offense.”  The ACCA defines a “serious drug offense” as a drug offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.”  Rodriquez was convicted of violating a state statute with a five-year maximum, which might seem the end of the matter, but for the fact that he was sentenced under a state recidivism statute that provided a ten-year maximum.  So what counts as the “offense”: the basic drug crime, or the recidivism statute?  The Supreme Court decided the latter, but left open a number of important questions.  For instance, the formal judgment of conviction in Rodriquez’s state case made clear that Rodriquez qualified for the state recidivism enhancement, but it is not clear whether the state conviction would have qualified if no such judicial record had been made.  Nor is it clear whether the same analysis would apply to sentence enhancements based on other considerations besides recidivism (e.g., use of a firearm during commission of the state offense).

The endless litigation over the scope of the ACCA highlights one of the fundamental missteps Congress made in drafting the statute, that is, using abstract offense categories to define what constitutes a qualifying criminal history.  A better approach would be to use sentence length, as the federal sentencing guidelines do: the ACCA’s recidivism enhancement would then depend on the actual sentence the defendant received in state court, rather than a hypothetical sentence the defendant might have received.  This is simple, straightforward information that is in everyone’s possession.  Among other things, a revised ACCA based on sentence length would be fairer to defendants, as they could more easily determine in advance whether they are subject to the fifteen-year minimum.  When the scope of a penal statute has generated as many circuit splits as has the ACCA–for instance, circuits were divided on the Rodriquez issue–we can’t have much confidence that defendants are receiving fair notice of the liability they face.

An even better solution would be to eliminate the ACCA altogether.  The ACCA imposes federal punishment on the basis of state convictions, without there being any reason to believe that states are incapable of handling their own repeat offenders.  As the Rodriquez case itself illustrates, states have plenty of recidivism statutes of their own.  Perhaps the most distressing aspect of the jurisprudential mess created by the ACCA is that it is wholly unnecessary.