SCOTUS Unties ACCA Hemp Knot

In the Armed Career Criminal Act (ACCA), Congress prescribed severe punishment for people with extensive criminal records who violate federal gun laws. The priors are generally state offenses, so there is a problem matching up criminal laws from different jurisdictions. Under the “categorical” approach the Supreme Court has developed, mismatches often spring loose criminals whose actual conduct meets the definition of the crime that Congress sought to include, frustrating the intent of the law. The Supreme Court has had to decide many cases on this topic, and today’s decision in Brown v. United States is the latest installment.

This decision involves two cases, one from Florida and one from Pennsylvania. In both cases, the drug dealers in question dealt in drugs that remain illegal under federal law. Between the times of their state drug-dealing crimes and their federal weapons sentencing, though, the federal government narrowed its definitions of controlled substances so that the state and federal laws were no longer a perfect match. Should that get them off? Three justices voted for that undeserved escape on a technicality, but the majority of six did not.

Justin Brown was convicted in Pennsylvania of dealing marijuana in 2009 and 2014. In 2016, he was convicted of the federal crime of possession of a firearm by a convicted felon. At the time of the priors and the present offense, both Pennsylvania and federal law defined marijuana as any part of the plant Cannabis sativa L., but Congress subsequently exempted hemp, defined as a variety of the same plant containing less than 0.3% THC. Was Brown selling hemp to rope makers back in 2014? Of course not. He was fully within the intent of the law, a recidivist drug dealer packing heat.

Eugene Jackson’s case is similar. There is a product derived from cocaine with radioactive iodine added, called [¹²³I]iofulpane, that is used in diagnosis of Parkinson’s disease. The DEA removed this substance from the schedules by regulation in 2015. Was Jackson peddling radioactive diagnostic pharmaceuticals on Florida’s streets when he was busted for selling cocaine? Of course not. He was also fully within the intent of the law.

Under the categorical approach required by Supreme Court precedent, a state offense does not count under ACCA and similar federal sentencing laws if there is any possible way one could violate the state law without violating the corresponding federal law included in the list of priors that count. What the perpetrator actually did is irrelevant. Two felons who committed the same prior offense in different states can get drastically different sentences when the feds later bust them for a gun crime simply because one state defines the crime more broadly than the other. This approach makes less work for judges but bears no resemblance to justice.

So today’s decision is an exercise in statutory interpretation. Did Congress intend that the state and federal definitions have to match at the time of the state prior, at the time of the federal offense, or at the time of the federal sentencing?

The opinion of the Court was written by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, and Barrett. Justice Jackson wrote the dissent, joined by Justices Kagan and Gorsuch. (No, voting for the prosecution or defense does not always follow the party of the appointing President.) Without going into the details, the opinion of the Court finds that the time of the state offense is the relevant reference. The dissent claims that the text of the statute alone unambiguously requires that a categorical match at the time of the federal offense is what matters.

What the statute actually defines as a “serious drug offense” for state priors is: “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” See 18 U.S.C.S. § 924 (e)(2)(A)(ii). “Involving” is a broad word. The text does not require the pusher-friendly “categorical” approach at all, much less at a specific time.

Justice Alito notes, in passing, the absurd result in the present case that would follow from the dissent’s interpretation. “Of course, Brown and Jackson were themselves convicted of crimes involving substances that are still on the federal schedules, marijuana and cocaine, not hemp or [¹²³I]ioflupane.” That sets the dissent off on a three-page discussion of how the majority is disregarding precedent. The majority responds with footnote denying it is abandoning or even impairing the categorical approach. That is true, unfortunately.

Requiring an exact match between the laws of different jurisdictions is an absurd policy that lets too many repeat felons off too easily. A better approach would be to look at the prior to see if there is any doubt that the conduct for which the defendant was previously convicted would also violate the law of the sentencing jurisdiction. By all means give the defendant the benefit of any doubt, but if the doubt is zero or microscopic, the recidivist sentencing statute should be applied.

Update: On May 28, the Supreme Court modified its opinion in Brown to clarify that it is the time of the state offense, not the time of the state conviction, that matters. In the last paragraph of the opinion:

For these reasons, we hold that a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of that conviction offense.