Wooden, ACCA, and Supreme Court Gun Crime Jurisprudence
On Monday, the Supreme Court released its opinion in Wooden v. United States, ruling unanimously in favor of the criminal defendant. At issue in the case is the different-occasions provision in the Armed Career Criminal Act (ACCA), which imposes a mandatory minimum 15-years in prison when a person convicted of unlawfully possessing a firearm has three or more prior convictions for violent felonies, like burglary, that are “committed on occasions different from one another.”
Decades ago, on a single night, William Wooden broke into 10 separate units in a storage facility and pleaded guilty to ten counts of burglary, one for each unit. The lower courts considered these 10 counts to be different occasions for purposes of triggering ACCA’s enhanced penalties. The Supreme Court, in an opinion by Justice Kagan, disagreed. “The ordinary meaning of the word ‘occasion’—essentially an episode or event—refutes the Government’s single-minded focus on whether a crime’s elements were established at a discrete moment in time.” An occasion simply means “an event or episode,” and it may contain multiple discrete activities (like, in Justice Kagan’s telling, the different, sequentially ordered activities that make the one occasion of a wedding celebration).
The Court also looked to the history and purpose of ACCA, observing that Congress added the different-occasions provision in response to a prior case that similarly concerned a one-night incident converted into a career criminal episode. (Justice Barrett, joined by Justice Thomas, took issue with the Court’s reliance on that legislative history and on the litigation history that, the Court said, led to the statutory revision.) The government’s approach could “make someone a career criminal in the space of a minute.” The Court thought that was all wrong. Rather, the Court considered a variety of factors relevant to the occasion-differentiation question: (1) timing, (2) proximity of the offenses, and (3) the character and relationship of the offenses. Most of the cases will be easy, the Court said, but in those hard cases, “assessing the relevant circumstances may also involve keeping an eye on ACCA’s history and purpose.”
Justice Gorsuch, in a concurring opinion joined in relevant part by Justice Sotomayor, argued that the rule of lenity should have instead been used to resolve the case. “Under that rule, any reasonable doubt about the application of a penal law must be resolved in favor of liberty.” The rule isn’t only triggered by grievous ambiguity, he argued, but affords the benefit of the doubt to criminal defendants whenever a statute is open to reasonable disagreement. “Where the traditional tools of statutory interpretation yield no clear answer, the judge’s next step isn’t to legislative history or the law’s unexpressed purposes. The next step is to lenity.”
Notably, Justice Gorsuch concurred only in the Court’s judgment and, in a part of the opinion not joined by Justice Sotomayor, castigated the majority for creating what he deemed an unworkable multi-factor test. In words that might be a harbinger of things to come in Bruen, he wrote: “Multi-factor balancing tests of this sort, too, have supplied notoriously little guidance in many other contexts, and there is little reason to think one might fare any better here.” As we’ve discussed at length, one of the key points to watch in Bruen is what the Court does with the methodological framework the federal courts of appeals have been unanimously using to assess Second Amendment challenges, but which some justices have considered an improper balancing test.
Justice Kavanaugh responded to Justice Gorsuch’s opinion “to briefly explain why the rule of lenity has appropriately played only a very limited role in this Court’s criminal case law.” The answer, for Justice Kavanaugh, is the heavy burden of ambiguity that must be met to trigger the rule of lenity. “[B]ecause a court must exhaust all the tools of statutory interpretation before resorting to the rule of lenity, and because a court that does so often determines the best reading of the statute, the rule of lenity rarely if ever comes into play.” In his view, concerns about notice in the criminal law should be addressed by mens rea requirements, not by greater use of the rule of lenity.
As well as possibly shedding light on the methodological question at issue in Bruen, Wooden appears to me as part of a changing landscape for federal gun crimes. For decades, the Supreme Court often adopted the harshest reading of federal gun crimes and, when it did deviate from that pattern, Congress would swoop into clarify that it meant the harsh reading. Brandon Garrett and I have a forthcoming article in the University of Pennsylvania Law Review, “The Trajectory of Federal Gun Crimes,” that chronicles the history and changes to federal gun crimes since the National Firearms Act in 1934. We discuss Congress’s changes to ACCA and the other mandatory minimum penalty for gun crimes, 18 U.S.C. § 924(c), and how the Court’s interpretation of gun crime statutes often extended those penalties broadly (as, for example, when it construed the extra penalty for “carry[ing] a firearm” during a crime to include transporting a gun in one’s trunk).
One remark Justice Gorsuch made in Wooden echoes a complaint we saw many times reading through the more than 75 SCOTUS opinions interpreting the federal gun laws. “Once more,” Justice Gorsuch bemoaned, “we confront the Armed Career Criminal Act. Disputes over the statute’s meaning have occupied so much of this Court’s attention over so many years that various pieces of the law and doctrines associated with it have earned their own nicknames—the Elements Clause, the Residual Clause, the Categorical Approach. Now comes the Occasions Clause.” Compare that to what we say in the paper about the other mandatory minimum provision for gun crimes: “[T]he Court has, over the past three decades, ruled on just § 924(c) so many times that in United States v. O’Brien, ruling that the use of a machine gun was a sentencing-enhancer that must be proven to the jury, the Court wearily commented, ‘[t]he Court must interpret, once again, § 924(c) of Title 18 of the United States Code.’”
Gun crimes make up a big portion of the docket in part because they tend to impose such draconian penalties. Many of the laws were passed at the height of the tough-on-crime era, with § 924(c) in 1968 and ACCA in 1984. Congress and the Court’s recent willingness to temper some of the severity of these laws may, however, mark a retreat from pushing the extremes.