“Power to the People: Why the Armed Career Criminal Act is Unconstitutional”

The title of this post is the title of this notable new article authored by Rachel Paulose and now available via SSRN.  Here is its abstract:

In our constitutional democracy, it is the people who hold ultimate power over every branch of government, including authority over the judiciary through the jury trial guarantee of the Sixth Amendment.  However, the traditional view of recidivist statutes, including the federal Armed Career Criminal Act (“ACCA”), exempts the fact of a defendant’s prior convictions from the Sixth Amendment jury trial promise.  Specifically, prosecutors and federal judges have removed from juries and given to sentencing judges the power to determine prior crimes that enhance a defendant’s sentence under the ACCA by labeling a recidivist finding a sentencing factor rather than an element of the offense.

In this article, I argue the recidivist statute exemption, primarily exercised in federal law through the vehicle of Almendarez-Torres v. United States, violates the Constitution; defies the Court’s revived focus on the jury trial right through the Apprendi v. New Jersey line of cases requiring any fact that increases a defendant’s sentencing range to be found by the jury or admitted by the defendant at the guilty plea; and disregards the Court’s due process focus in the Taylor v. United States line of cases prohibiting factfinding under the ACCA.

I present my theory by examining the ACCA’s different occasions clause, a lesser known but potent provision that in theory imposes the ACCA’s mandatory minimum sentence of fifteen years only when recidivist crimes are “committed on occasions different from one another.”  In practice, judges impose the different occasions clause by engaging in complex judicial factfinding at sentencing by a lower preponderance of the evidence standard regarding the who, what, when, where, and why of prior crimes.  Judges who label the different occasions clause a sentencing factor rather than an element of the offense act in disregard of the jury trial right, due process guarantee, and legislative intent of the ACCA.  I argue that the Constitution requires the ACCA different occasions clause to be decided by a jury beyond a reasonable doubt in a bifurcated trial.  Judicial removal of the different occasions clause from jury scrutiny dramatically illustrates why a new approach enforcing the Sixth Amendment jury trial right to the ACCA different occasions clause is long overdue.