The Supreme Court’s decision in Johnson v. U.S. clarified the reach of the Armed Career Criminal Act restoring the lives of many federal inmates serving illegal sentences. Contrary to recent reports, the amended ACCA has not contributed to an increase in the general crime rate.
The Honorable Doug Overbey, United States Attorney for the Eastern District of Tennessee, recently submitted an opinion letter in which he disagrees with the Supreme Court's decision in Johnson v. U.S. The ruling struck down a part of the federal Armed Career Criminal Act of 1984 ("ACCA") as being unconstitutional, by a vote of 8 to 1. Because of this, some federal offenders have been released, because they were serving illegal sentences. Mr. Overbey says Johnson has resulted in a "dire fallout" across our nation. As the federal defender for this district, I must disagree.
What is the “ACCA”? The ACCA was designed to punish repeat offenders with three or more prior federal or state convictions for "serious drug offenses" or "violent felonies." The ACCA increases the penalty for the crime of being a felon in possession of a firearm from a maximum of 10 years to a minimum of 15 years, a sentence that a judge cannot reduce.
What was wrong with the ACCA? In an opinion written by the late Justice Scalia, the Court found that one section of the ACCA’s definition of “violent felony” was “unconstitutionally vague,” meaning a person could not read the law and know what prior convictions would subject them to the severe 15-year sentence of the ACCA. The law had been interpreted to include minor prior offenses such as trespass, stealing change from a telephone booth, taking part in a hunger strike, fleeing police by bicycle, and failing to stop for a blue light. Many defendants were sentenced to a 15-year mandatory minimum based on non-violent crimes like these. As a result of Johnson, prisoners who had already served 10 years or more have been released, because their sentences were illegal.
Why the backlash? Proponents of the ACCA enhancement say that releasing prisoners from illegal sentences has led to an increased crime rate.
Have crimes rates increased? Mr. Overbey’s letter repeats parts of two recent speeches given by Attorney General Jeff Sessions. In those speeches, Mr. Sessions threw out unverifiable numbers in an attempt to convince the audience the Johnson decision has caused problems. In another speech in December 2017, Mr. Sessions misrepresented crime statistics from his own department’s report, stating there has been a 13 percent spike in violent crime across the U.S. That information is incorrect.
The Brennan Center for Justice reports that overall crime rates in America's 30 largest cities remain at or near historic lows. The FBI reports violent crime rate fell 48 percent between 1993 and 2016, and in the first half of 2017, it was still decreasing. Even Tennessee’s recidivism rates had shown a promising decrease after the Johnson decision. These numbers do not support the claim that the Johnson decision has resulted in an increase in crime, or a "dire fallout.”
Have recidivism rates increased? Mr. Sessions stated that approximately 1,400 offenders were released from prison because of the Johnson decision, and approximately 600 of those were rearrested. However, the source of these numbers is unknown. The Department of Justice does not track recidivism, and the Administrative Office of the U.S. Courts has not yet released any numbers. Also, “rearrest” does not mean a new crime has been committed. In a report found on www.uscourts.gov, for the year 2017, 69 percent of rearrests were for minor technical violations such as failing to turn in monthly reports to Probation, not new crimes. Even if the number of rearrests claimed were correct, that would equal a recidivism rate of 43 percent. According to the U.S. Sentencing Commission, 43 percent is considerably lower than the rate of many offenders serving an entire sentence of 15 years or more. Moreover, being released early from prison does not increase recidivism rates. Repeated studies have shown that the rate of recidivism for drug offenders released early due to a retroactive reduction in their sentences is the same or less than those who served their full sentences. One would expect the same result for defendants released early under the Johnson decision.
What's the answer to the purported problem? Mr. Overbey stated the problem created by the Johnson decision is solvable if Congress amends the ACCA so that prosecutors can keep offenders behind bars and out of our communities.
First, the Johnson decision did not create a problem. The Johnson decision fixed the problem of people serving unconstitutional sentences. Because of that fix, many individuals have gotten years of their lives back and have become productive members of society. That translates to many families restored. It also translates to many, many thousands of dollars saved. The Bureau of Prisons reports it costs over $36,000.00 per year to house a federal inmate. Add to those savings the fact that many of those released may now be employed and paying taxes.
Some of the savings the Johnson decision has given rise to should be spent helping these released offenders succeed. What if these individuals were to receive adequate re-entry programming during their incarceration, adequate half-way house time to help get them acclimated to a world outside of bars, ongoing counseling, temporary housing, and employment opportunities? What if each individual were to have a trained mentor provide them with much-needed encouragement and support within their community? This could certainly change the recidivism numbers. The released offenders would be better prepared to succeed, the recidivism rate would go down, and our communities would be even safer. This would be a much better solution.
I encourage those interested in being part of the solution to educate themselves on the impact of mass incarceration and unjust sentencing in the U.S. A great place to start is FAMM.org (Families Against Mandatory Minimums). Also, I encourage seeking out re-entry programs in your community that are in need of volunteers, such as the one starting in Knoxville. (Call 865-637-7979.) The program is based on a belief that every person, regardless of circumstance, is capable of carving a new path in life. Be a part of the solution.
Elizabeth B. Ford, Federal Community Defender
Lisa R. Johnson, Certified Paralegal
Federal Defender Services of Eastern Tennessee, Inc.