Supreme Court Justice Ketanji Brown Jackson adjusting her glasses during her confirmation hearing before the Senate Judiciary Committee Tuesday, March 22, 2022 (AP Photo/Carolyn Kaster)
The United States Supreme Court heard 90 minutes of oral arguments Monday in the consolidated cases of two individuals convicted of felony drug offenses who were later caught with guns, giving the justices a chance to resolve a procedural conundrum with significant potential consequences for repeat offenders.
In Brown v. United States and Jackson v. United States, Justin Rashaad Brown and Eugene Jackson each raise questions about the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) — a “three strikes” law that was designed to deter and punish repeat offenses.
The ACCA extends the minimum sentence – from 10 years to 15 – for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.” The issue before the Supreme Court is which definition applies to the term “serious drug offense”: the federal drug schedules that were in effect at the time of the federal firearm offense or the federal drug schedules that were in effect at the time of the prior state drug offense.
Brown’s brief to the justices summarizes precisely the problem at hand.
“Ninety miles separate the federal courthouses in Philadelphia and Baltimore,” the brief reads, before warning: “For felon-in-possession offenders in Philadelphia, those 90 miles can mean up to fifteen additional years behind bars because the courts of appeals have split over how to apply the Armed Career Criminal Act.”
Brown and Jackson had prior drug convictions under state law (Brown for marijuana under Pennsylvania law, and Jackson for cocaine under Florida law). As often happens, however, Congress changed the definitions of the various drugs by the time of the defendants’ sentencing. Congress changed the statutory definition of marijuana to exclude hemp, and had removed the cocaine derivative ioflupane from the list of scheduled substances.
Although Brown and Jackson were respectively convicted for possession of marijuana and cocaine (as opposed to hemp or ioflucane), their cases test the question of definitional timing simply because the cases involve the interplay between state and federal law. In some circumstances in which there is a mismatch between state and federal statutes, the state offenses may not be used as predicate offenses to trigger federal sentencing enhancements.
Attorney Jeffrey Green argued on behalf of Jackson that courts must apply the law as it appears on the date of sentencing or risk ignoring congressional changes to drug schedules. Jackson’s position is the one employed by the U.S. Courts of Appeals for the Third, Fourth, Eighth, and 10th Circuits.
Justice Sonia Sotomayor was quick to point out an inherent problem with sentence-enhancing statutes: that they assume an offender may decide not to commit a crime because of the potential for a more serious sentence. Sotomayor called that concept a “fallacy.”
Green argued that using the law as it stood prior to sentencing would be impractical. Chief Justice John Roberts pressed Green on the point and asked whether attorneys could not find the relevant information via “a few keystrokes.” Green would not concede that the task would be simple.
“There could be changes that get missed because people don’t use the database right,” he argued.
By contrast, Assistant Federal Public Defender Andrew Adler argued on Brown’s behalf that the key date is the date on which the federal offense was committed.
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Several of the justices pointed out problems with either the fairness or the workability of such a system. Justice Neil Gorsuch, for example, noted that if a drug were to be removed from a federal drug schedule in between the time of the offense and the time of sentencing, then Adler’s position would be detrimental to the defendant.
Assistant to the Solicitor General Austin Raynor represented the Department of Justice in the case and advocated for yet a third option: using the date of the state offense. The DOJ’s position was taken by the U.S. Court of Appeals in Jackson’s case.
Justice Neil Gorsuch was skeptical, and asked why the wording of the ACCA would not require a determination based on present-day drug schedules. Justice Amy Coney Barrett also expressed concern about the relative ease of looking past statutory designations at the time of sentencing.
Justice Ketanji Brown Jackson, a former federal public defender who served as assistant special counsel to the U.S. Sentencing Commission and later as a commissioner and vice chair, questioned Raynor at length.
“Do you concede that a change in the drug schedules reflects a change in what is considered to be a serious drug offense?” Jackson asked. Raynor substantially agreed.
Justice Jackson then followed up, posing a question that went to the heart of the DOJ’s argument.
“Why, then, would Congress want to incapacitate Defendants who have committed crimes that federal law no longer regards as serious?” she pressed.
The justices appeared most receptive to Eugene Jackson’s position — that the drug schedule in operation at the time of sentencing should be controlling for purposes of ACCA. The case is the latest in a series that has become before the justices relating to the ACCA.
Last March, the justices ruled unanimously in favor of a defendant who faced an enhanced sentence. At the time, Gorsuch and Sotomayor said the court should have gone even further. In June of 2021, the Court ruled 5 to 4 that crimes requiring a mental state of recklessness are insufficient to trigger mandatory minimum sentences under federal law.
You can listen to the full oral arguments here.
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