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Statements on Introduced Bills and Joint Resolutions

Floor Speech

Location: Washington, DC

Mr. SPECTER. Mr. President, I have sought recognition to introduce today a bill that strengthens the Armed Career Criminal Act in response to a series of Supreme Court rulings, which wrongly have restricted when and how the Act is applied, and have caused unnecessary and costly litigation with inconsistent results throughout our Federal court system. The Department of Justice has provided extensive technical assistance in the drafting of this bill over many months. I am introducing this legislation, so the next Congress can have my views on this subject.

The Armed Career Criminal Act provides certain and harsh penalties for criminals who are considered especially dangerous because of their prior serious criminal convictions and subsequent possession of a firearm. It has proven to be one of the strongest crime fighting tools in protecting the public from repeat offenders who are armed.

The Act mandates a 15-year sentence for offenders who have already accumulated three prior convictions for a violent felony or serious drug offense, and are convicted in Federal court for possessing a firearm in violation of section 922(g) of title 18, United States Code. The Armed Career Criminal Act, also referred to as section 924(e) of title 18, United States Code, was part of the Omnibus Crime Control Act passed by the 98th Congress in 1984. The 99th Congress broadened its reach by expanding the crimes that trigger the mandatory 15 year sentence.

The Act provides Federal prosecutors with the ability to take the most dangerous and violent criminals--a small percentage responsible for as much as 70 percent of all crimes--out of circulation. Its effectiveness, however, has been seriously undermined by Supreme Court decisions that have severely limited its reach and needlessly complicated its application. Specifically, these decisions have unfairly restricted what documents a judge may review in order to determine whether a prior conviction triggers the Act's sentencing enhancement, and too narrowly restricted the Act's definition of violent crime. The bill I am introducing, called the Armed Career Criminal Sentencing Act of 2010, negates the impact of these rulings.

In Taylor v. United States, 495 U.S. 575, 1990, and Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court has required that district courts apply a ``categorical approach'' when determining whether certain prior convictions trigger the enhanced sentence under section 924(e) of title 18, United States Code. This has led to increased litigation, as well as random and contradictory sentencing results. It has also put an unnecessary burden on the courts.

The ``categorical approach'' prevents Federal judges from looking at reliable evidence of the facts of qualifying prior convictions and instead only permits Federal judges to review the language of the statute of conviction and certain limited judicial records, such as the charging document, the jury instructions, and the change of plea colloquy. The Supreme Court of the United States has said that its reading of section 924(e) in this regard is colored, in part, by concern that to permit a more probing judicial inquiry could raise right-to-jury-trial issues because the sentence enhancement under section 924(e) increases the statutory maximum sentence of 10 years under section 922(g) to life imprisonment. Under Apprendi v. New Jersey, 530 U.S. 466, 490, 2000, a case decided after the enactment of the Armed Career Criminal Act, any facts, other than prior convictions, which may be used to increase the sentence of a defendant beyond the statutory maximum sentence must be proven to a jury beyond a reasonable doubt.

There have been frequent instances in which armed career criminals have not been sentenced consistent with congressional intent due to this Supreme Court precedent that has significantly narrowed the applicability of section 924(e) and prevented judges from exercising their historic sentencing discretion and judgment.

Few statutory sentencing issues have led to such costly and time-consuming litigation at every level of the Federal court system as the determination of whether the broad range of criminal offenses under State and local law qualify categorically as crimes of violence or serious drug trafficking offenses.

Among the 50 States and territories, there are significant disparities in the content and formulation of State and local criminal laws. There are also differing charging and recordkeeping practices. Based on such fortuities as this, the Supreme Court's precedent has caused an irrational divergence of Armed Career Criminal Act sentences. Fundamental principles of equality and fair treatment, as well as the imperative of vigorously protecting public safety, require far more uniform administration and implementation of the sentencing provisions under section 924(e).

Federal judges are capable of examining and evaluating reliable evidence to determine if a particular conviction or series of convictions merits enhancement and should be entrusted to continue their historic role as sentencing fact finders.

The solution to this problem is simple. The bill I am introducing today eliminates the ``categorical approach'' and allows judges to return to their traditional sentencing roles and to make the sentencing judgments traditionally assigned to courts. The bill accomplishes this by lowering the maximum sentence under section 924(e) from life to 25 years, and increasing the maximum sentence under section 922(g) from 10 years to 25 years. Equalizing the maximum sentences for the two statutes means that when a judge enhances a sentence for a section 922(g) conviction, as permitted by section 924(e) for armed career criminals, the judge will not increase the statutory maximum sentence of section 922(g) and therefore necessarily avoids any implication of Apprendi principles. The Congressional Research Service has reviewed and agreed with this legal analysis.

Because sentences for violations of section 922(g) of title 18, United States Code, by individuals who are not armed career criminals will commonly fall in the range of 10 years or less by operation of the advisory sentencing guidelines and the reasonable judgment of the sentencing courts, I do not anticipate that there will be many resulting changes in the length of sentence for those individuals, although the increased statutory maximum will apply.

The Armed Career Criminal Act currently defines ``violent felony'' as ``any crime punishable by imprisonment for [more than] one year ..... that ..... (i) has as an element the use, attempted use, or threatened use of physical force against ..... another ..... or ..... (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.'' 18 U.S.C.  924(e)(2)(B).

To date, the Supreme Court has decided four cases (with another to be argued next month) in an attempt to clarify which State and local violent crime offenses qualify as sentencing enhancements under the Armed Career Criminal Act. In all but one, the Court has too narrowly restricted the Act's definition of violent crime.

Despite the clear language in section 924(e)(2)(B)(ii) that a violent crime includes ``conduct that presents a serious potential risk of injury to another,'' the Court has read this so-called ``residual clause'' to only apply to crimes that typically involve purposeful, violent, and aggressive conduct--even though there is no such limiting language to be found in the statute's definition of violent crime.

Thus, in United States v. Begay, 553 U.S. 137, 2008, the Court found that 11 felony DUI convictions did not qualify as conduct that presents a serious risk of physical injury to another. In Chambers v. United States, 129 S. Ct. 687, 2009, the Court held that the crime of failure to report to prison, which is the crime of escape, was a ``far cry from the purposeful, violent, and aggressive conduct''' required to qualify as a violent crime.

The Supreme Court has also too narrowly restricted the violent felony definition in section 924(e)(2)(B)(i) by holding that the use of physical force against another as an element of a crime must include violent force. In Johnson v. United States, 130 S. Ct. 1265, 1271, 2010, the Supreme Court held that a battery conviction under Florida law did not qualify for the Act's sentencing enhancement because ``[w]e think it clear that in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force--that is, force capable of causing physical pain or injury to another person.'' Again, those words--violent force--are nowhere in the statute's definition.

The bill I am introducing today simply and clearly defines qualifying violent crime in two ways--by elements and by conduct--and does not require violent force, just physical force. It also removes the violent crime definition from the so-called ``residual clause'' to prevent limitations being read by the Court into its meaning. Under the bill, violent crime includes crimes that have as an element--the use, attempted use, or threatened use of physical force, however slight, against the person of another individual, or that serious bodily injury intentionally, knowingly, or recklessly resulted from the offense conduct.

The bill also defines violent crime to include offenses that, without regard to the formal elements of the crime, involved conduct that presented a serious potential risk of bodily injury to another or intentionally, knowingly, or recklessly resulted in serious bodily injury to another.

Finally, to ensure that an inflexible application of section 924(e) does not result in overly harsh results, this bill gives prosecutors the discretion to file a notice advising the defendant and the court whether the prosecutor will seek to invoke all, some, or none of the prior convictions of the defendant to trigger the penalty enhancement. This is done already for Federal drug penalty enhancements and works well.

By making these simple changes, we can be assured that fundamental principles of equality and fair treatment are followed, and that public safety will be vigorously protected. I urge my colleagues to pass the Armed Career Criminal Sentencing Act of 2010.


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