This past Monday, the Supreme Court granted certiorari in Stokeling v. United States, No. 17-5554. The question presented is: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”
The circuits are in conflict on whether “overcoming resistance” in robbery statutes categorically requires “violent force.” The Tenth and Eleventh Circuits have held that two different common law robbery offense offenses, both of which require overcoming “victim resistance,” categorically require violence force, that is, “force capable of causing physical pain or injury to another person,” which is “a substantial degree of force;” the word “violent” connotes “strong physical force.”
In contrast, the Fourth and Ninth Circuits have held that similar offenses (and in the case of the Ninth Circuit, the exact same robbery offense as addressed by the Eleventh Circuit) do not categorically require violent force.
Today the United States Supreme Court denied certiorari review in Hidalgo v. Arizona, No. 17-251. Hidalgo asked the court to consider two important Eighth Amendment questions: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
The case was distributed for conference ten times before certiorari was denied. Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, issued a strong statement respecting the denial of certiorari as to the firstquestion presented—whether Arizona’s statutory sentencing scheme satisfies the Eighth Amendment’s “narrowing requirement” for determining who is “eligible” for the death penalty. The justices did not comment about the second and broader question about whether the death penalty in all cases violates the Eighth Amendment.
It is well-settled, “[t]o pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). As Justice Breyer explains in Hidalgo, “[t]o satisfy the ‘narrowing requirement,” a state legislature must adopt ‘statutory factors which determine death eligibility’ and thereby “limit the class of murders to which the death penalty may be applied.” (quotation marks omitted). Hidalgo’s certiorari petition argued that Arizona’s scheme “utterly fails to do that” because “[t]he number of statutory aggravators has proliferated such that ‘virtually every person—around 99%—convicted of first-degree murder is eligible for the death penalty.” The Arizona trial court denied Hidalgo’s request for an evidentiary hearing to “establish through witnesses, expert testimony, and documentary evidence that [Arizona’s] statutory aggravating circumstances … apply to virtually every first-degree murder case in the State.”
The Arizona Supreme Court affirmed the trial court but did not dispute Hidalgo’s evidence. “Despite assuming that the aggravating circumstances fail to materially narrow the class of death-eligible first-degree murder defendants, the Arizona Supreme Court nevertheless concluded that the State’s death penalty system meets the Constitution’s narrowing requirement. It said that the petitioner was ‘mistaken … insofar as he focuses only on the legislatively defined aggravating circumstances’ because use of those circumstances ‘is not the only way in which Arizona’s sentencing scheme narrows the class of persons eligible for the death penalty.’” The Arizona Supreme Court identified five factors not related to the legislative definition of aggravating circumstances.
Justice Breyer’s opinion examines and rejects all five factors as either previously having been rejected by Supreme Court precedent or not showing “the necessary legislative narrowing that [its] precedent requires.” For example, with respect to the Arizona Supreme Court’s reliance on prosecutorial discretion to perform the narrowing requirement, Justice Breyer says “that reasoning cannot be squared with this Court’s precedent—precedent that insists that States perform the ‘constitutionally necessary’ narrowing function ‘at the stage of legislative definition.” (quotation marks omitted). Although the four justices concluded that the Arizona Supreme Court “misapplied” Supreme Court precedent, and that Hidalgo’s evidence “points to a possible constitutional problem,” they agreed that certiorari should be denied. That’s because the record in Hidalgo’s case (through no fault of his own) came to the Court “largely unexamined by experts and the courts below in the first instance.” In Breyer’s view, “the issue presented in [Hildago’s] petition will be better suited for certiorari with such a record.”
The United States Sentencing Commission issued a report on March 15th titled Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System. This is the third publication in the Commission’s series on mandatory minimum penalties, including the 2017 Mandatory Minimum Overview and the 2017 Drug Mandatory Minimum Report.
Yesterday’s Mandatory Minimum Firearms report uses fiscal year 2016 data and focuses on firearms offenses, the second most common federal offenses carrying mandatory minimums after drug offenses. The report analyzes two statutes carrying minimum mandatory penalties: (1) 18 U.S.C. § 924(c) (relating to using, carrying or possessing firearms in furtherance of a drug trafficking or crime of violence); and (2) 18 U.S.C. 924(e), the Armed Career Criminal Act. The publication also addresses the impact of these statutes on the Bureau of Prison’s prisoner population.
Here are some highlights from the 81-page report:
1. Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.
2. Offenders charged with and convicted of multiple counts under section 924(c)received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.
3. In addition, other charging and plea decisions also play a significant role in theapplication and impact of firearms mandatory minimum penalties.
4. Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.
5. While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.
6. Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.
A forthcoming University of Miami Law Review article titled A Touchy Subject: The Eleventh Circuit’s Tug-of-War Over What Constitutes Violent Physical Force, examines internal disagreements within the Eleventh Circuit, and that Court’s conflicts with other circuits, about the proper application of the Armed Career Criminal Act’s elements clause after United States v. Johnson, 135 S. Ct. 2551 (2015) (Johnson II). The article is written by Assistant Federal Defenders Conrad Kahn and Danli Song from the Middle District of Florida. The abstract of the article, available for download on SSRN here, states:
In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.
Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).
Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA’s elements clause. This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong—specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause. This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.
A year-end analysis of by the Brennan Center for Justice, titled Crime in 2017: Updated Analysis, directly undercuts any claims that there is a nationwide crime wave. According to the report, “[a]ll measures of crime in the 30 largest American cities—the overall crime rate, violent crime rate, and murder rate—are estimated to decline in 2017,” although there are some cities where violence has increased, like Chicago and Charlotte. Here are some key findings of the Brennan Center’s analysis:
- The overall crime rate in the 30 largest cities in 2017 is estimated to decline slightly from 2016, falling by 2.7 percent.
- The violent crime rate will also decrease slightly, by 1.1 percent, essentially remaining stable.
- The 2017 murder rate in the 30 largest cities is estimated to decline by 5.6 percent. Large decreases this year in Chicago (down 11.9 percent) and Detroit (down 9.8 percent), as well as small decreases in other cities, contributed to this decline. New York City’s murder rate will also decline again, to 3.3 killings per 100,000 people.
- Some cities are projected to see their murder rates rise, including Charlotte (54.6 percent) and Baltimore (11.3 percent).