In the peak of the “get tough on crime” years, the Comprehensive Crime Control Act of 1984 was signed into law by President Ronald Reagan. This was the biggest overhaul of the criminal code in decades. One provision included the Armed Career Criminal Act, or ACCA. The ACCA created enhanced penalties for the possession of a firearm for felons who had been convicted of three violent crimes or serious drug offenses.
Under 18 U.S. Code § 924(e), any felon in possession of a firearm who has three previous convictions for a violent felony, serious drug offense, or both, shall be imprisoned not less than 15 years. A “violent felony” is defined as having “as an element the use, attempted use, or threatened use of physical force against the person of another,” or “burglary, arson, or extortion, involves use of explosives", or "otherwise involves conduct that presents a serious potential risk of physical injury to another.” When this statute applies, the defendant is subject to a 15-year mandatory minimum.
Another enhanced sentencing mechanism is the Career Offender Guideline. Under the Federal Sentencing Guidelines USSG § 4B1.1, individuals who are deemed career offenders face significantly enhanced penalties, based on a formula that determines their offense level. Under the federal sentencing guidelines, a "career offender" is defined as (1) an individual who is at least 18 years old at the time they committed the offense, (2) the instant offense is either a felony crime of violence or controlled substance offense, and (3) they have at least two prior felony crime of violence or drug offense.
How is a "crime of violence" under the Career Offender Guidelines defined? It uses the exact same definition as the ACCA statute. The part of that definition which says a crime of violence can be defined as one which "otherwise involves conduct that presents a serious potential risk of physical injury to another" is called the residual clause.
Under the ACCA, the residual clause allows judges to consider crimes not enumerated under the statute (not burglary, arson, extortion or using explosives), to determine whether they fall within the context of a “violent felony.” In the past, judges have used various methods to categorize a criminal offense as violent, including the likely risk of physical harm, the way in which the crime is normally committed, and the physical force involved. However, this could lead to different judgments by different judges on similar crimes, without the chance for an individual to present their case to a jury of their peers. For instance, some federal courts have found that car theft qualifies as a violent felony, and some courts have found that non-confrontational "escape" (walking away from a halfway house program) can qualify - merely because of the minimal risk that they could lead to a confrontation.
In a landmark decision, the Supreme Court recently addressed the issue of how violent felonies are treated under the ACCA in the case of Johnson v. United States. After careful analysis, the justices found the ACCA's residual clause violates due process as being unconstitutionally vague. While Johnson found judicial relief as the result of Court's holding, thousands of others have felt the full sting of the minimum 15-year penalty.
ACCA, in addition to harsh mandatory minimum penalties for many crimes, including non-violent drug offenses, contributed to a boom in the prison population in the United States. According to the Bureau of Justice Statistics, the U.S. prison population went from about 400,000 in the early 1980s, to 1.5 million in 2014, giving the U.S. the highest rate of incarceration per capita of any country in the world. Nearly 600 individuals a year are facing increased prison time as the result of sentencing under the ACCA.
According to a paper by Harvard Law Professor Leah Litman, “Residual Impact: Resentencing Implications of Johnson's Potential Ruling on ACCA's Constitutionality,” the “ACCA is a flashpoint for many of the most pressing issues facing criminal law today—Hispanic and black offenders receive the ACCA enhancement at higher rates than white offenders do, and ACCA's harsh mandatory minimum may lead many defendants to plead guilty to avoid more extensive prison time.”
Going forward, defendants will not receive mandatory minimums under ACCA based solely on the residual clause. If the Johnson ruling is applied retroactively, it could reduce the sentences of thousands of prisoners serving enhanced time under the ACCA's mandatory minimums. However, for the thousands sentenced under the Career Offender Guidelines, Johnson may afford no direct relief, although it could signal a sea-change in the way the public and lawmakers consider enhancement sentences, especially for non-violent offenders. Congress has been slow to put the necessary legislative changes into law.