Tag Archives: Prisoner’s Rights

From Scalia and a White Supremacist, a Victory for Prisoners’ Rights

Tochi Onyebuchi

The American democratic experience is an exercise in contradiction.

Moments after the Supreme Court legalized same-sex marriage nationwide, Justice Scalia, whose loquacious and vituperative dissent in Obergefell v. Hodges has since been widely quoted, analyzed, praised, and mocked, handed prisoners’ rights activists a decisive victory. And he used a white supremacist to do it.

As of Friday, June 26, 2015, thousands of people in federal prisons could face re-sentencing procedures, some of which might result in early release, the result of a blow the Supreme Court just struck against mandatory minimum sentencing laws.

The case of Johnson v. United States addressed the constitutionality of a provision in the Armed Career Criminal Act, a 1984 law that mandated a minimum of 15 years imprisonment (and a maximum of life) for possession of a firearm, if that person bears three or more prior convictions of a “serious drug offense” or a “violent felony.” During petitioner Johnson’s conviction for possession of a firearm as a felon, the federal prosecutor, for the purposes of sentencing, classified a prior conviction for possession of a sawed-off shotgun as a “violent felony” under the statute’s residual clause. Consequently, Johnson was sentenced to 15 years in federal prison.

The problem here is that possession of a firearm is not a violent felony under the statute. Or, at least, the Court realized it wasn’t. Indeed, the clause at question had this to say regarding the definition of a violent felony: “any crime punishable by imprisonment for a term ex¬ceeding one year […] that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added).

Under that law, prosecutors have in the past used drunk driving and failing to report to a parole officer as “violent” offenses, as well as many others that could, in no way, be categorized as violent. As a consequence, defendants were often bullied into plea deals on the basis of a law that, according to Scalia, “proved to be anything but evenhanded, predictable, or consistent.”

Johnson’s claim was that the clause that the prosecution had used to levy a harsher sentence was unconstitutionally vague. After nine years of trying to figure out what exactly that clause meant, the Supreme Court agreed.

The ACCA shares DNA with New York’s “Rockefeller Laws” enacted in 1973, which dictated mandatory minimum sentences of fifteen years’ imprisonment for selling two ounces or possessing four ounces of heroin, cocaine, or marijuana. On the federal level, Congress blanketed the statutory landscape with mandatory minimum sentence restrictions for narcotics offenses, firearm offenses, and other offenses.

Judge Rakoff, District Judge for the Southern District of New York, provides an example of the ensuing judicial insanity that came with stripping judges of their powers of discretion:

“[F]ederal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.”

The practice of augmenting sentences bears strong implications with regards to for-profit prisons: Private prison corporations, such as the Corrections Corporation of America—which in 2012 generated more than $1.7 billion (USD) in revenue—regularly contract with the federal, state, and local governments to fill prison beds and are the prime beneficiaries of sentence-enhancing legislation, such as the ACCA. And, the racial ramifications are undeniable: In fiscal year 2014, 5,498 offenders were convicted of violating the ACCA. 98% were male. 52.4% of those were black.

While the inequities of mandatory minimum sentencing are most often invoked in the context of drug offenses, they wreak similar havoc when tracking weapons offenses.

Friday’s ruling won’t open every cell in Attica, but for the approximately 900 or so prisoners whose convictions have not yet become final (i.e. when a prisoner has exhausted his direct appeal in the federal court of appeals and the Supreme Court has denied a petition for certiorari or the time to file a petition for certiorari has expired), the argument may now be made that they were sentenced under plain error that affected substantial rights and that, as in the case of Samuel Johnson, violated Due Process.

For prisoners whose convictions are final, relief may also be available. Retroactively applying the Johnson decision to defendants already convicted under the ACCA would trigger collateral review. And for those prisoners who were subject to the sentencing enhancement, they may now be able to raise the claim that they were punished with a sentence the statutory law could not impose on them, a sentence that exceeded the statutory maximum for the offense of which they were convicted.

Samuel Johnson was an avowed white supremacist who was under investigation by the FBI since 2010 and was suspected of preparing to commit acts of terrorism. He revealed to undercover agents his cache of AK-47s, semi-automatic rifles, and ammunition. He told them he had manufactured an explosive device meant for specific “progressive” targets.

And he may have provided a new avenue of relief for thousands of inmates of color nationwide.

It is up to Congress now to draft more specific language or simply to operate under the limited statute. But, in the meantime, federal prosecutors may have their hands full in determining who may be eligible now for early release.