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In a recent interview, National Association of Assistant United States Attorneys (NAAUSA) President Steve Cook criticized legislation, the Sentencing Reform and Corrections Act, that would make modest changes to federal sentencing laws and require a data-driven approach to reduce prisoners' risk of recidivism through rehabilitative programs. Cook's comments about the legislation, which has already cleared the Senate Judiciary Committee, were directed at proposed changes to 18 U.S.C. § 924(c) and the Armed Career Criminal Act (18 U.S.C. §§ 922(g), 924(e)) that would reduce some sentences and allow people in prison to seek shorter sentences in courts, based on those reforms.
NAAUSA’s arguments, which tend toward fearmongering, are wrong and overstate what the reforms would do. In fact, the gun sentencing reforms being considered are modest and still ensure that gun offenders get lengthy prison sentences.
Section 924 Reform: No Recidivist Penalties for Non-Recidivists
Meant to target repeat violent offenders, 18 U.S.C. § 924(c) requires, depending on the type of gun involved and how it is used, the addition of an extra 5, 7, 10, 25, or 30 years of prison time for people who possess, brandish, or discharge a gun in the course of a drug offense or a so-called “crime of violence.” This extra prison time is in addition to whatever sentence the person receives for the underlying crime. For example, a person who sells drugs in their living room and has a gun in the safe in the bedroom would get an extra five years automatically for possessing that gun – in addition to whatever punishment they receive for the drug offense. This recipe leads to very long, expensive prison sentences – even when guns are not used or fired, or are owned for other lawful purposes.
A glitch in section 924(c), though, can result in absurdly lengthy sentences for people who are not true repeat offenders. Weldon Angelos, a life-long target shooting fan and a first-time offender was sentenced to federal prison for possessing a gun in the course of a drug trafficking offense. On three occasions over a short time period, Angelos sold about $1,000 worth of marijuana to an undercover officer. The first time, he had a gun in an ankle holster, but did not take out, point, or fire the gun. The second time, he had a gun in his car during the drug sale. The third sale occurred in his home, where police found guns locked in a safe. These three sales and gun possession events were charged in a single indictment, and because of the way section 924(c) works, Angelos received a sentence of 55 years: 5 years for the first gun charge, 25 years for the second gun charge, and 25 years for the third gun charge – all to be served back-to-back-to-back.
Paul Cassell, the federal judge who presided over the case, harshly criticized the sentence he was required give Angelos. "If he had been an aircraft hijacker, he would have gotten 24 years in prison. If he’s been a terrorist, he would have gotten 20 years in prison. If he was a child rapist, he would have gotten 11 years in prison," Cassell said in February 2015. "And now I’m supposed to give him a 55-year sentence? I mean, that’s just not right." Cassell, who was appointed to the federal bench by President George W. Bush, is not a bleeding heart leftist. During his time on the federal bench, he was a proponent of victims' rights.
What are the drastic, life-threatening reforms to section 924(c) that NAAUSA so fears? Under the Sentencing Reform and Corrections Act (SRACA), the 25-year sentences for repeat offenders would be lowered to 15 years and would only apply to true recidivists – people who had already previously committed and been convicted of crimes that involved guns. These reforms would be retroactive. Under the bill, Angelos could go back to court and – if and only if he first convinces a judge that he is not a danger to the public – get his sentence reduced to 15 years (5 years for each of his gun possession charges).
SRACA also changes section 924(c) by requiring that the 15-year sentences for recidivists be applied if the person has a prior conviction for any state crime that involved a firearm. You heard that right: under this reform bill, even more people with a history of violent offenses would actually be exposed to the lengthy, 15-year mandatory minimum sentences if they commit federal drug or violent crimes with a gun later on.
SRACA, in short, merely ensures that people like Angelos would get punished like the first-time offenders they are, rather than the repeat violent criminals that they are not. NAAUSA wants to convince us that SRACA’s section 924(c) fix is a hair-raising crime spree waiting to happen. It is actually a rather dull fix to a technical glitch in the law.
As Senator Mike Lee (R-UT), a co-sponsor of SRACA explains, “This is a misinterpretation of law rendered by courts across the country that we are now correcting. It is simply incorrect to say that this suddenly releases a bunch of violent criminals. I would add, moreover, that our provisions dealing with 924(c) are actually tougher on crime moving forward; they are tougher on violent offenders. This expands the application of 924(c) moving forward so it applies to violent offenders and not just drug offenders who are recidivists."
ACCA: A More Rational Punishment for a Deeply Flawed Law
Similarly, NAAUSA also opposes reforms to the Armed Career Criminal Act (ACCA). This federal law requires a 15-year mandatory minimum prison sentence for any prohibited person who possesses a gun or ammunition and also has three prior convictions for serious drug offenses or violent felonies.
ACCA is fantastically broad and has been litigated endlessly in courts. It applies to prohibited people who include, among others, dishonorably discharged veterans and recreational drug users. There are no time limits on how recent the three prior convictions have to be – a person who struggled with drug addiction and racked up three drug offenses 10 or 15 years ago would still find himself facing an automatic 15-year prison term if he later purchased a gun for hunting or self-defense. Some “career” criminals have had short careers indeed, committing three crimes in a narrow window of time and then going on to lead law-abiding lives in which they would like to own a gun for lawful purposes. Additionally, last summer the U.S. Supreme Court found one part of the definition of what counts as a prior “violent felony” so vague it tossed it out as unconstitutional.
Cook took aim at the proposed changes to ACCA in the Sentencing Reform and Corrections Act by taking a very broad view of what it would do. "It will make reductions in sentences to be imposed on armed career criminals, and it will make those retroactive," Cook said in a recent interview. "That will mean that thousands of armed career criminals will be eligible for release from prison."
The Sentencing Reform and Corrections Act makes ACCA both harsher and more reasonable. It changes ACCA by increasing the maximum sentence for possession of a firearm by a prohibited person with three prior convictions from 10 years to 15 years. The mandatory minimum sentence required under ACCA is, however, reduced from 15 years to 10 years. These are modest changes, indeed. A minimum of 10 years in prison is still a very harsh punishment for violating a law that Justice Antonin Scalia has declared a “farce playing in federal courts throughout the nation.”
The changes to ACCA are retroactive, but that does not mean that offenders will necessarily be released back into communities. Just like Angelos, an ACCA offender would first have to convince the sentencing court that he poses no danger to the community before receiving any sentence reduction.
During the Senate Judiciary Committee's markup of the Sentencing Reform and Corrections Act, Sen. Mike Lee (R-Utah) took aim at the critics of the proposed changes and strongly rebutted the notion that the bill’s gun provisions would result in the release of violent offenders.
Lee defended the changes to ACCA made by the Sentencing Reform and Corrections Act, citing a specific example of how the law has been misapplied. "The ACCA provisions deal with possession, by felons, of guns or ammunition. We make a very modest reduction here from 15 years to ten years to reflect the simple fact that not all felon in possession crimes are created equal," Lee said. "There are some people like this guy in the Sixth Circuit who was simply removing carpet from a hallway, and he found a bullet. He picked up the bullet so he could lay the carpet and for that he was convicted, for that he received a 15-year sentence."
"All we're saying is that should be deemed ten-year minimum mandatory sentence rather than a 15-year. We could actually have a serious discussion here about whether even a ten-year is just. But a 15-year certainly is not just. That is all we're doing. We're not letting out violent offenders. That is false," Lee added.
Opponents of the Sentencing Reform and Corrections Act are resorting to scare tactics. Obviously, violent offenders, especially recidivists, should be subject to severe punishments to protect our communities. That is not even in question – all the punishments in the Sentencing Reform and Corrections Act are still severe, by any standard. What this bill does is address the misapplications of section 924(c) and ACCA, providing for retroactivity if the offender is not a danger, while expanding the violent offenses that can be considered in sentencing to those committed in state jurisdictions. Under this bill, everyone still goes to prison for a long time, and people do not get to come home early unless they are no longer a threat.
Senator Lee, a former federal prosecutor, can understand NAAUSA’s concerns – he is just not persuaded by them, and neither should we be.