It’s time to restore a valuable tool to prosecutors by fixing the ACCA

Published 8:44 am Monday, August 20, 2018

Violent crime rates in our country tripled from 1964 to 1980. Robbery tripled, murder doubled, and aggravated assault nearly tripled. This was an alarming time for communities across our nation.
To fight back, Congress passed the Armed Career Criminal Act (ACCA) in 1984, giving federal prosecutors a powerful new tool to deal with the growing rate of violent crime. The ACCA gave prosecutors the ability to take the most violent criminals off the streets by requiring courts to impose a minimum 15-year sentence for felons who were caught with a firearm and had a criminal history of three or more violent felonies.
Federal prosecutors across the country aggressively used this new tool, charging and convicting violent offenders and taking them out of the communities they were terrifying. By 1992, violent crime had begun a historic decline. From 1991 to 2014, violent crime and murder fell by half, aggravated assault fell by 47 percent, and robbery fell by nearly two thirds.
While some debate how much of this dramatic decline was caused by the enactment of the ACCA, the United States Sentencing Guidelines (when their application was mandatory across the country), and a number of other things, there really is no doubt the most significant factor in the decline in the rate of violent crime was due to keeping the most violent criminals off the streets longer.
In 2015 — after 30 years on the books — a critically important part of the ACCA was struck down by the Supreme Court in Johnson v. United States as being vague. Lawyers, judges, and scholars can disagree about whether the Court got it right, but one thing not up for reasonable debate is the dire fallout resulting from the Johnson decision.
Invalidating a portion of the ACCA nullified many violent offenders’ sentences, causing their release to be earlier than intended. This resulted in real consequences across the nation and has led directly to an increase in crime. The defendants released as a result of this ruling have already victimized hundreds of persons: 10 defendants were arrested for murder, 14 for kidnapping, 11 for sexual assault, 37 for robbery, 218 for assault, 56 for burglary, 156 for larceny, and 13 for stolen cars. In addition, 53 defendants were re-arrested for drunk driving, 81 defendants went back to drug trafficking, and 166 were re-arrested for other drug charges. Ironically, 100 defendants were also re-arrested for weapons offenses.
In the Eastern District of Tennessee, at least 37 defendants were granted relief in light of the Johnson ruling. Twenty-seven have already been released from prison. Of those, at least 14 — more than half — have already had their terms of supervised release revoked or modified due to noncompliance. Three of the 14 referenced above have actually had their supervised release revoked twice and are back in jail today.
Placing career violent criminals back on the street before their time is served should be unacceptable to everyone. More than 1,400 criminals — each convicted of three felonies — have been let out of jail since the Court ruling. So far, more than 600 have been arrested again. On average, these 600 criminals have been arrested, rearrested, or reoffended three times since 2015. A majority of those who have been out of prison for two years have already been arrested again.
While these numbers are shocking, experience tells us they are likely an underrepresentation of the illegal activity committed by these criminals. In the short three years since the ruling by the Supreme Court, released violent felons have already needlessly victimized hundreds of Americans. How many more will be victimized this year, or the next, or the next? As the top federal law enforcement official in our District, I shudder to think we will only see history repeat itself again and again.
Thankfully, the problem is solvable. Congress can fix the problem created by the Johnson decision. Congress has the ability to amend the ACCA so that prosecutors can continue to keep the most violent offenders behind bars and out of our neighborhoods and communities. It’s not for me to say how Congress should go about this fix — I understand that there are many options on the table. But, in my opinion, one more victim is one too many.
(J. Douglas Overbey is United States Attorney for the Eastern District of Tennessee)

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