Defining “Occasion”
The federal “three strikes” law provides enhanced penalties for felons who possess firearms after three convictions for violent felonies or serious drug offenses “committed on occasions different from one another.” What exactly is an “occasion”?
Wooden v. United States, No. 20-5279, taken up by the Supreme Court today, is one of the rare cases where a defendant writing his own certiorari petition actually got the Court to take the case up for full briefing and argument.
However, the Court passed on the issue that Wooden emphasized most, a Fourth Amendment question. Instead, it limited the issue to Wooden’s second question. As framed by Wooden, it is:
Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory definition with regard to the vague term “committed on occasions different from one another”?
See update at end.
This presents intertwined questions of interpretation of the statute and constitutionality of it under the “void for vagueness” rule. Declaring a statute unconstitutional is a drastic step, and the Court should, and normally does, try to give it constitutional interpretation first.
Breaking into 10 different units at a self-storage place is 10 counts of burglary under Georgia law. That seems reasonable, given 10 separate breakings and 10 separate entries to steal the possessions of 10 separate victims. But if they are done one after another is that 10 different occasions for the purpose of the recidivist statute? That seems like a stretch.
Unlike the decisions striking down the “residual clause” in several definitions of “violent felony,” see United States v. Davis (2019), declaring the “occasions” clause to be unconstitutionally vague would present a very difficult problem of severability. How could that be stricken without bringing down the whole law?
Of course, bringing down the whole law is exactly the result that those whose oppose giving criminals their just deserts seek. But is the Court willing to remove the penalty across the board, including exactly the kind of case Congress had in mind, the career criminal who commits multiple violent crimes over an extended period? I doubt it. A saving construction is more likely.
Update (4/16): The above discussion of the constitutional question was written based on Wooden’s un-lawyered petition for writ of certiorari and the government’s response. Wooden subsequent obtained counsel. The lawyer-written reply to the government’s brief in opposition downplays the constitutional attack and focuses on the statutory interpretation question.
That is much better strategy, in my opinion. They might even win the case with that argument.
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Do you think, Kent, that the fact that this case involves otherwise constitutionally protected behavior — namely the possession of a firearm in the home — is a relevant factor in the statutory interpretation issue (or a possible vagueness issue)?
I generally find ACCA problematic — and it is subject to so much litigation — primarily because of the extreme severity of its mandatory minimum term. But I sense something additionally problematic about the severity of ACCA punishment when applied to seemingly benign conduct like gun possession in the home that, on it own, is widely considered constitutional protected and virtuous (see, e.g., Rep. Boebart). That is another reason I think ACCA should always be subject to limiting constructions — even without ACCA, Mr. Wooden can still get up to 10 years in federal prison — but I wonder if you think there is anything constitutionally distinctive or problematic in some cases about the way ACCA works to subject gun possession to such extreme prison terms.
I don’t think it will be much of a factor. Many rights can be forfeited by commission of a felony, even life itself. There are some laws where forfeiture of the right to bear arms is dubious, such as lifetime loss for a single misdemeanor of domestic violence. In the case of three violent prior felonies, that is so far within the boundary of any conceivable constitutional limit that it should not be a factor.
BTW, Wooden could win his case in SCOTUS and still receive the enhancement. The case would go back for decision of whether his aggravated assault prior was “violent,” a dispute that was mooted when all 10 burglaries were counted separately.
Yeah, I think it interesting that this could prove inconsequential to the petitioner, though I believe Wooden has viable arguments to knock out another of his predice felonies. And, in the end, I suppose I might be making a kind of policy (or even Eighth Amendment) claim that ought to inform the application of ACCA (at least in some cases) — if/when the offense conduct is so benign as to be constitutionally protected as done by others, then the prior bad acts that allow for some punishment ought to have to be especially bad to justify a mandatory 15 years in prison.
I have said for years it is crazy that Congress did not clean all this up long ago by bumping the regular offense stat max up to 15 years and the ACCA minimum down to 10. Remarkably, it is already a dozen years since Justice Alito in Chambers urged Congress to “right ACCA’s ship.”