Supreme Court takes up prior conviction problem, again

No criminal statute has taken up more of the U.S. Supreme Court’s time in recent decades than the Armed Career Criminal Act. As the name implies, sentencing under the act depends heavily on the extent of the defendant’s criminal career. The chronic headache comes from the fact that each jurisdiction defines crimes differently, and federal defendants prosecuted under the ACCA typically have multiple prior convictions in state court.

Recidivist drug dealer Justin Brown was prosecuted for possessing crack cocaine with intent to distribute and possessing a firearm that he was not allowed to possess due to his criminal record. He had five prior drug-dealing convictions in Pennsylvania state court. Sounds like an exemplar of an armed career criminal. So what’s the problem?

Four of the priors were for marijuana offenses. At the time of the priors and at the time of the current offenses, Pennsylvania and the United States defined marijuana the same way, but subsequently the federal definition was narrowed to exclude hemp.

Why is this a problem? Did Pennsylvania actually prosecute Brown for selling hemp to rope manufacturers, rather than selling weed for getting stoned? The factual statement of his certiorari petition makes no such claim, and it seems extremely unlikely.

The problem is that the Supreme Court has said, in essence, we don’t care what the defendant actually did in his prior crimes, we only care how the state defines the offense and whether it is possible to commit the state crime without violating the analogous federal statute or “generic offense.” This is called the categorical approach.

The absurdity of this case illustrates why we should simply dump the categorical approach. Priors under similar statutes should count. If exceptions should be made for conduct under broad state statutes that exceed the federal one or the overall norm, let the defendant come forward and show that his actual conduct fell into the area of excessive breadth. As it stands now, large differences in sentences are turning on differences in statutory wording that have nothing to do with the culpability of the defendant.

The case is Brown v. United States, No. 22-6389. A companion case also taken up today is Jackson v. United States, No. 22-6640.

1 Response

  1. Bryan Freres says:

    I’ve kept a list of convictions that don’t qualify as violent felonies (under ACCA) or crimes of violence (under the guidelines or various statutes) or serious drug offenses / felonies or drug trafficking crimes. The list is absurd at this point. The most ridiculous has to be Illinois cocaine convictions not counting because Illinois criminalizes positional isomers of cocaine while the federal definitions do not. Positional isomers of cocaine don’t exist in nature, they’ve only been synthesized in a lab a couple times (and even then there is a question of whether it has any of the properties of cocaine) and the relevant state and federal lab testing would not have picked it up. In short, nobody has ever been convicted of trafficking positional isomers of cocaine, but because it is theoretically possible, no cocaine trafficking convictions can qualify.

    Some other highlights of the categorical approach, I.e., things that are categorically “non-violent”: kidnapping (regardless of how done or whether it involves rape or murder), conspiracy to commit murder, attempted murder or attempting other crimes of violence, arson (even though specifically listed), burglary (same), and certain sex assaults. Pretty much nothing qualifies. The categorical approach is beyond ridiculous.

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