The U.S. Supreme Court has jumped once more into the question created by habitual criminal laws and the variation in the definitions of crimes across jurisdictions. The problem is particularly acute for federal courts, because the "priors" are usually in state court.
The "three strikes" provision of the Armed Career Criminal Act of 1984 imposes a sentence of 15-to-life for unlawful possession of a gun by a felon if the felon has three previous convictions for "a violent felony or a serious drug offense." The list of offenses qualifying as "violent" includes "burglary" without elaboration. See 18 U.S.C. ยง 924(e)(2)(B)(ii).
Burglary was given a very narrow definition at common law because it was a felony at a time when all felonies were punished by death. Once American legislatures began restricting capital punishment to a much narrower class of crimes, they also began expanding the definition of burglary. The expansions included commercial buildings as well as residences, daytime entry as well as nighttime, and unlawful entries without a requirement of "breaking." The residency requirement remains in some states as an element of a higher degree of the crime.
In Taylor v. United States, 495 U.S. 575, 599 (1990), the Supreme Court decided that "burglary" for the ACCA includes "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."
How about "structures" that are mobile but "designed or adapted for the overnight accommodation of persons"?
The "three strikes" provision of the Armed Career Criminal Act of 1984 imposes a sentence of 15-to-life for unlawful possession of a gun by a felon if the felon has three previous convictions for "a violent felony or a serious drug offense." The list of offenses qualifying as "violent" includes "burglary" without elaboration. See 18 U.S.C. ยง 924(e)(2)(B)(ii).
Burglary was given a very narrow definition at common law because it was a felony at a time when all felonies were punished by death. Once American legislatures began restricting capital punishment to a much narrower class of crimes, they also began expanding the definition of burglary. The expansions included commercial buildings as well as residences, daytime entry as well as nighttime, and unlawful entries without a requirement of "breaking." The residency requirement remains in some states as an element of a higher degree of the crime.
In Taylor v. United States, 495 U.S. 575, 599 (1990), the Supreme Court decided that "burglary" for the ACCA includes "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."
How about "structures" that are mobile but "designed or adapted for the overnight accommodation of persons"?
That is part of the definition of "aggravated burglary" in Tennessee. The Sixth Circuit held that this expansion beyond the usual fixed buildings normally thought of as structures was enough to disqualify Tennessee burglary from the ACCA. So Victor Stitt's six aggravated burglary priors don't count, regardless of whether those priors actually involved burglary as traditionally defined or not.
The Government petitioned for certiorari in United States v. Stitt, No. 17-765 and United States v. Sims, No. 17-766. The Court took up both cases today for briefing over the summer and argument in the term beginning in October.
Arbitrariness in sentencing brings thunderous condemnation when it runs against the defendant, but the basic principle of treating similarly situated people equally requires that we guard against arbitrariness in the other direction as well. Furthermore, achieving the public safety goals of the statute requires that we not blind ourselves to the actual record of crimes committed by a habitual criminal.
It would not be difficult at all to look back into Stitt's record and see what locations he burgled. If they were, in fact, houses, it should not matter that Tennessee also punishes burglary of trailers, even if that act is not considered "generic burglary" for federal purposes. Perhaps it is time to reconsider Taylor.
The Government petitioned for certiorari in United States v. Stitt, No. 17-765 and United States v. Sims, No. 17-766. The Court took up both cases today for briefing over the summer and argument in the term beginning in October.
Arbitrariness in sentencing brings thunderous condemnation when it runs against the defendant, but the basic principle of treating similarly situated people equally requires that we guard against arbitrariness in the other direction as well. Furthermore, achieving the public safety goals of the statute requires that we not blind ourselves to the actual record of crimes committed by a habitual criminal.
It would not be difficult at all to look back into Stitt's record and see what locations he burgled. If they were, in fact, houses, it should not matter that Tennessee also punishes burglary of trailers, even if that act is not considered "generic burglary" for federal purposes. Perhaps it is time to reconsider Taylor.
I agree 100% Kent that we should be troubled by arbitrariness in sentencing that runs in both directions. But isn't the extreme mandatory minimum provisions in ACCA, more than Taylor, the real source for arbitrariness in this context?
A defendant who has committed two extreme rapes and then illegally possess a machine-gun faces a max of 10 years, but a defendant who has committed three burglaries decades earlier who possesses seven shotgun shells is serving 15-years thanks to ACCA. See US v. Young: http://www.opn.ca6.uscourts.gov/opinions.pdf/14a0234p-06.pdf
Because I think all MMs create problematic distortions in case-processing and contribute to arbitrariness, I would like to see ACCA repealed and the max for felon in possession raised. But we could get functionally toward making Talyor less consequential by just raising the max for FIP to, say, 25 and lowering the ACCA min to, say, 5.
Of course, such a fix has been obvious and needed for more than a decade, but instead we have gotten a lifetime's worth of wasted litigation and too much arbitrariness in both directions to track.
As I have said before, I would be willing to support repeal of all mandatory minimums in return for a comprehensive system of binding sentencing guidelines.
However, any "solution" that gives the trial judge unreviewed or only lightly reviewed discretion to depart downward is not acceptable. The sentence a defendant receives should depend on what he did and what he has done before, not which judge he draws.
In Colorado in the 1970s breaking into a pay phone was a burglary. I had a client who was charged and attempted to pay me with quarters.
How many quarters did your fee come to?
At least it wasn't dimes. That was the price of a pay phone call then, IIRC.
"Thank you for your time / You've been so much more than kind / You can keep the dime" -- Jim Croce, "Operator"