The U.S. Supreme Court took a step back from the brink of irrationality in sentencing today in Stokeling v. United States, No. 17-5554. The vote was a surprisingly close 5-4, and not strictly on the "usual" lines.
Convicted criminals should be sentenced primarily according to the crime they committed and the crimes they have committed before. Other relevant factors should have minor weight, and irrelevant factors should have no weight. That is the essence of fairness in sentencing.
Among the irrelevant factors that should have no weight are the minor quirks in the law of the jurisdiction where the prior offense was committed. Yet when it comes to sentencing federal convicts with prior state convictions, deciding what constitutes a "violent felony" for the purpose of the Armed Career Criminal Act (ACCA) has proven to be a surprisingly difficult problem. Sometimes the distinctions threaten the fairness and even the rationality of federal sentencing. Defendants who committed similar crimes in different states can be sentenced very differently because one state defines the crime in a slightly broader way so that a person could theoretically be convicted under the statute for an act that is not actually violent, even though the actual defendant's actual act was very violent.
Is robbery a violent felony? Of course. As originally enacted, the ACCA's "three strikes" provision included robbery by name, with a definition mirroring the common-law definition, "any felony consisting of the taking of the property of another from the person or presence of another by force or violence." "Force" in this definition must necessarily be broader than force that causes personal injury because otherwise it would be redundant with "violence," and the common law did define robbery in a broader sense.
In 1986, Congress amended the statute in an amendment titled "Expansion of Predicate Offenses for Armed Career Criminal Penalties." Did this "expansion" amendment actually contract the definition so severely that robbery convictions from most states would no longer be included? It is remarkable that such a question would even reach the Supreme Court and even more remarkable that the Court was narrowly divided on it.
The problem goes back nine years to Johnson v. United States, 559 U.S. 133 (2010). Then, as now, the amended, expanded version of the ACCA's three strike provision applied to violent felonies, which include any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another ...." The question was whether simple battery qualified as a violent felony. Simple battery can be committed under Florida law, consistently with the common law and many states, by "only the slightest unwanted physical touch."
The Court held, 7-2, that battery with such a broad definition is not a violent felony within the definition of the ACCA. I have no problem with that holding. An unwanted physical touch is not necessarily a forcible one. The Court could have said that and stopped there. However, Justice Scalia wrote the opinion of the Court, and characteristically he did not merely paint with a broad brush but with a spray gun. "We think it clear that in the context of a statutory definition of 'violent felony,' the phrase 'physical force' means violent force--that is, force capable of causing physical pain or injury to another person." Not only is that not clear, it is clearly not correct, particularly in the context of robbery.
The clearest distinction between larceny and robbery can be seen in the purse-snatching context. If the snatcher pulls off the snatch stealthily, so the victim loses possession of the purse before she knows what is happening, that is larceny. If she holds on to the strap and the thief pulls it away by force, that is robbery. There has never been a requirement that the force injure the victim or put the victim in danger of injury. Yet this is certainly "physical force," and nothing in the text or history of the ACCA indicates that this kind of crime was meant to be excluded.
Justices Alito and Thomas dissented.
Fast forward to the present case. The District Court looked past the face of the defendant's robbery conviction to the actual facts. "The court concluded that, although Stokeling ' "grabbed [the victim] by the neck and tried to remove her necklaces" ' as she ' "held onto" ' them, his actions did not 'justify an enhancement.' " The Eleventh Circuit rejected that conclusion and also rejected the argument that Florida robbery is not an ACCA violent felony.
In the Supreme Court, Justice Thomas, a Johnson dissenter, wrote the opinion of the Court, joined by Justices Breyer, Alito (the other Johnson dissenter) and the new kids on the block, Justices Gorsuch and Kavanaugh. Only Justice Breyer is in the majority on both cases. The dissent is by Justice Sotomayor joined by Chief Justice Roberts and Justice Ginsburg, all in the Johnson majority, plus Justice Kagan, who "lost" the Johnson case as Solicitor General, though she didn't argue it herself. (That task fell to the future California Supreme Court Justice Leondra Kruger.)
Part II A of Justice Thomas's opinion follows the argument above regarding robbery, the meaning of "force" in robbery, and the unlikelihood that Congress intended to exclude robbery as traditionally defined when it amended the ACCA with the express purpose of expanding it. In Part II B, he seeks to reconcile the result with Johnson but does not really grapple with the language in Johnson tying the force required to pain or injury. I suspect that Justice Thomas would prefer to just disapprove that language outright, but the author of the opinion of the Court must hold a majority together.
The dissent says "the Court's contrary ruling distorts Johnson ...." The holdings of the cases do not conflict at all, but yes, Stokeling does fall within the zone of Justice Scalia's overspray. Perhaps a future decision will clean that up with an express disapproval.
For federal prosecutors applying ACCA to state robbery priors other than Florida, the key language is: "Because the term 'physical force' in ACCA encompasses the degree of force necessary to commit common-law robbery, and because Florida robbery requires that same degree of 'force,' Florida robbery qualifies as an ACCA-predicate offense under the elements clause." That should cover most states. See page 7 of the slip opinion.
Restoring Rationality to Recidivist Sentencing curated from Crime and Consequences Blog
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