A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime. This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.IntroductionThe Armed Career Criminal Act ("ACCA"), a federal criminal sentencing statute codified in a few brief sentences, has attracted substantial attention from the Supreme Court. Most ACCA cases would probably never be appealed were it not for the statute's life-altering impact-a fifteen-year mandatory minimum sentence for felons found in possession of a firearm or ammunition who have three previous convictions for a "violent felony" or "serious drug offense."1Although judges sentence relatively few offenders under the statute,2 frustrated courts, defendants, and prosecutors expend considerable resources on ACCA trials and appeals.3 Broad and imprecise statutory language as well as cryptic Supreme Court interpretations have predictably created confusion over the ACCA's scope. As a result, defendants routinely challenge its application. Even among offenders convicted of crimes carrying mandatory minimum penalties-a group that proceeds to trial at nearly twice the federal average for criminal defendants4-those sentenced under the ACCA are nearly three times as likely to get to trial.5The ACCA's ambiguous reach stems mainly from uncertainty over which convictions count as ACCA predicate offenses. Three convictions for a "violent felony" or "serious drug offense" qualify felons in possession for sentencing under the ACCA,6 but the statute imprecisely defines these terms, and there is particular confusion about the meaning of a violent felony. The ACCA lays out two ways that a conviction can be a violent felony predicate offense. It can have an element that involves "the use, attempted use, or threatened use of physical force against the person of another."7 Alterna- tively, it can be "burglary, arson, or extortion, involve[ ] use of explosives, or otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another."8 The "otherwise" catchall tacked onto the second prong of the violent felony definition is known as the residual clause. Its breadth is a source of substantial judicial confusion and academic debate.9Unclear guidance from the Supreme Court on how sentencing courts should decide when a given conviction counts as an ACCA predicate offense contributes to the statute's ill-defined outer limits. …