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13 Words That Could Mean Freedom for Many

The debate over the federal ‘residual clause.’

Erskine Smith was 24 when he pleaded guilty to selling cocaine in Pittsburgh. Before the plea, a letter from the government estimated his sentence at 108 months to 135 months, or about nine to 11 years. But once he pleaded guilty, Smith received a presentence report that floored him: the report set the sentence at a mandatory 292 months to 365 months, or about 24 to 30 years. A judge sentenced him in 1993 to 30 years in prison.

The primary reason for the extra years: Two prior “crimes of violence” that the court agreed made Smith a career offender. Smith had punched a man at age 18 and assaulted another in his hotel room at 20. Each conviction was for simple assault, a Pennsylvania misdemeanor, for which he served no jail time. But the federal government classified the crimes as violent felonies, a designation that meant Smith would be sentenced under the career offender guideline of the Federal Sentencing Guidelines, which boosts sentences for people who have previously been convicted of two violent or drug felonies.

Each year, about 2,000 people are sentenced under the career offender guideline. For about three-quarters of them, the most recent crime is drug-related.

Though the sentencing guidelines have been advisory since 2005, experts say judges still tend to rely on them. Federal non-career drug offenders get an average of nearly 69 months, while career drug offenders get an average of nearly 169 months, according to data from 2005 to 2014 analyzed by the Federal Defenders.

But a June Supreme Court ruling may get some of them, including Smith, a new sentence.

In Johnson v. United States, the Court struck down the the less-than-sexily named “residual clause” of the Armed Career Criminal Act1, deciding it was unconstitutionally vague. Because of the decision, many people sentenced under the Armed Career Criminal Act will get at least five years knocked off their sentence.

The same clause appears in the career offender guideline, and defense lawyers are hoping it will meet the same fate. They are now asking federal appellate courts to apply Johnson to the career offender guideline and resentence long-serving prisoners who have not benefited from recent, more publicized, reforms.

The problem with the residual clause is its vague language, which calls for a boosted sentence when a past crime “involves conduct that presents a serious potential risk of physical injury to another.”

Prior to Johnson, the Supreme Court had tried for nine years to figure out what the residual clause meant in the Armed Career Criminal Act and how to interpret it consistently. The court had decided it did cover attempted burglary and vehicular flight from an officer, but it did not cover driving under the influence or failing to report to a penal institution.

This June, the court essentially threw up its hands. The statute left “grave uncertainty” about how to estimate risk. So the justices ruled it void for vagueness.

In a speedy concession after Johnson, the government agreed people should not get a boosted sentence merely because of the residual clause in the sentencing guideline. But the government argues its new stance should not be applied retroactively, to people such as Smith.

The Federal Defenders have maintained that the courts should reconsider all career offender sentences triggered by the residual clause.

Who will prevail is up in the air.

Most federal courts have ordered resentencing hearings when defendants have filed first appeals, though one conservative court has stood up and said no, rejecting the government and defender’s arguments. Some experts think this may force the issue up to the Supreme Court.

Meanwhile, two major cases about retroactivity are pending. Experts say they expect the courts to be all over the map. Leah Litman, a law fellow at Harvard who has written recently on the issue, anticipates the courts to rule against the prisoners. Previous Supreme Court cases that narrowed the scope of the clause in the Armed Career Criminal Act and were applied retroactively to those prisoners did not extend to career offenders, she said.

Amy Baron-Evans, who helps research and write briefs in Johnson cases as sentencing resource counsel for the Federal Defenders, who are representing Smith, anticipates the opposite. She says Johnson is different from previous Supreme Court rulings that narrowed the Armed Career Criminal Act because it is a constitutional case, based on an interpretation of the due process clause. Earlier cases just interpreted the meaning of the statute. Constitutional decisions are always applied retroactively to prisoners in ACCA and guidelines cases alike, she says.

But before these legal questions are settled, the U.S. Sentencing Commission, an independent agency that establishes sentencing policy, may intervene. In August, the Sentencing Commission proposed changes to the career offender guideline, striking the residual clause and clarifying the definition of violent felony. This amendment could go to Congress as soon as January. If it becomes law, people with residual clause crimes will not be sentenced as career offenders and their first appeals will be successful.

The Sentencing Commission can also make its amendments retroactive. It is seeking public comment on whether it should.

Douglas Berman, a law professor at Ohio State, thinks the problem with the career offender guideline runs much deeper than the question of whether we can correctly categorize a crime as violent or nonviolent. “Johnson and its aftermath is a symptom of a much bigger disease,” he said. That we focus our attention on criminal history is sensible, but criminal history can be a real “hodgepodge” of factors. With the career offender guideline, “we’re forcing the law to do a job I don’t think the law is well-positioned to do, that is, to really quantify with some formality and specificity a person’s criminal past.”

Smith’s lawyers are hopeful, but they’re not relying on Johnson alone. They’re putting together his petition for resentencing now, along with an application for clemency.