Just Your Ordinary Violent Felony

It’s not that Congress doesn’t have a sense of humor.  After all, who else would think it’s a laugh-riot that defendants are acquitted after trial of a crime and get sentenced for it anyway and yet omit it from laws with names like the Smarter Sentencing Do It For The Children Act. But even Nino Scalia called bullshit when it came to the residual clause of the Armed Career Criminal Act.

In his opinion in Johnson v. United States, the Court raises a question that even law nerds struggle to embrace:

Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” a term defined to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws.

What’s the problem, you ask?  Well, it’s not the sort of problem that comes immediately to mind. Cristian Farias takes a shot at explaining:

Scalia’s reasoning for striking it was rather straightforward: One, the very text “leaves grave uncertainty about how to estimate the risk posed by a crime,” which means it gives a judge too much room “to imagine how the idealized ordinary case of the crime subsequently plays out.” And two, “the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.”

Got it now? No?  Well, then. Matt Brown tries his hand:

The approach the courts take when applying the clause looks only to the fact the defendant was convicted, not the facts underlying the prior convictions. It is called the categorical approach, and although it may seem ridiculous, courts actually have to imagine an “ordinary case” and consider if that involves a serious potential risk of physical injury. On top of that, there is no real way to know how much risk is enough risk to qualify. 

Better, but still a little too obtuse to make a dent?  Let’s give Nino another try, since he gets paid the big bucks to explain this stuff:

Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents a serious potential risk of physical injury. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime “has as an element the use . . . of physical force,” the residual clause asks whether the crime “involves conduct” that presents too much risk of physical injury.

Clear now?  First of all, this is part of the problem, that the confusion with this bit of statutory brilliance defies explanation of the problem, no less the solution, that being its meaning.  But hey, Congress gets to pass the laws, and even if it strings words together that make people’s heads hurt, it’s the courts’ job to make sense of it.  Except when it can’t.

It helps to know that the residual clause of the ACCA isn’t a crime, but a sentencing enhancement.  It ups the sentence from whatever would otherwise be appropriate for the actual offense to a minimum of 15 years. But as a sentencing enhancement, one might think that Congress, in its wisdom, would base it on the actual conduct committed by the defendant.

Nope. That would be easy and make sense. None of that here.  Instead of getting all bogged down in the weeds of actual conduct, where messy stuff like facts and details live, Congress came up with a much cooler way to smack those armed career criminals: look only at the statutory elements of the offense rather than what the guy actually did, and then, maybe with a beer, a hookah, whatever floats a judge’s boat, picture in your mind’s eye the “ordinary” way such a crime happens.

Do you see a risk of physical injury?  Close your eyes…picture the crime…the ordinary crime, not the Terminator version…and does the kid potentially risk getting hurt?  Boom.

But that’s not where the judge’s very hard job ends. Oh no. Then the judge must determine whether the potential risk is sufficiently, you know, risky.

So what if the actual crime for which a defendant is convicted would normally have a sentence of, say, a year.  If he’s got three or more predicate offenses, the sentence shoots up to at least 15 years because of some imagined “ordinary crime” that could happen if what actually happened didn’t actually happen, and then a judge, for no comprehensible reason, decides that the potential risk (not just the “risk,” but the “potential risk,” which is one step removed from actual risk) is sufficiently serious.

And because of Nino Scalia, this is no longer the law. As I keep saying, statutory construction matters, and badly written and conceived laws are unconstitutional and bad policy, no matter how much you love their purpose and explanations.

3 thoughts on “Just Your Ordinary Violent Felony

  1. John Barleycorn

    There is an uplifting grinch joke in here somewhere about a fat man in a robe stealing the PTA’s scissors while they are drafting the part of the arts and crafts curriculum regarding the use of construction paper.

    If only I could find my glue stick this morning…

  2. Scott Morrell

    So interesting! I love the concept of an “ordinary crime.” What can that possibly mean? Who wrote this crap into law?

    Maybe they should say the ‘base level run-of-the -mill crime’ is stealing a hat from an elderly lady while she is crossing the street. That seems very mundane. Or maybe asking in the nicest way if one can go into a Walmart and ask “pretty please” for al the money in the cash register without a gun. Those seem like fair “ordinary crimes.”

    Like Todd Akin’s horrific use of English when he was discussing abortion rights if there was a “legitimate rape,” lawmakers better go back to grammar school before being elected.

    Great Post.

    1. SHG Post author

      Bear in mind, it’s the “ordinary” flavor of whatever crime is in issue. In this case, it was a felon in possession of a weapon, so it’s the “ordinary” instance of that crime. It still has no meaning, but I want to be sure you’re clear that it’s not just some wholly unspecified crime.

Comments are closed.