What Counts As Three Strikes?

July 21, 2015 9:08 pm Published by

With the recent Supreme Court decisions on same-sex marriage and health insurance, it easy to overlook an important sentencing decision made at the same time.  Most people are aware that it is a crime for a felon to possess a firearm. What most people do not know is if a felon is caught with a firearm and he has three prior “violent felonies” he is subject to a mandatory minimum sentence of fifteen years.   That is, the judge may not sentence such a defendant to anything lower than fifteen years.

The thorny question is – what exactly counts as a “violent felony?”   The statute says that a violent felony is any use or threat of physical force against another person. It can also be burglary, arson, extortion, or other “conduct that presents a serious potential risk of physical injury to another.” It is this “other” language that is hard to define because there are many types of crimes that could arguably fall into this category. For example, does DWI count? What about fleeing from a police officer? The Supreme Court has issued many prior opinions in an attempt to sort this out.

In this case one of the three prior felonies was possession of a sawed off shotgun. Does mere possession present “a serious potential risk of physical injury” justifying its inclusion as one of the three strikes? The Court said “enough is enough,” deciding that this “other” language is so vague that it cannot be applied fairly. Therefore the specifically defined felonies count as one of the three strikes, but no “others.”

This is good news for the growing community of people concerned about the extreme power of mandatory minimum sentences. The decision about whether to charge a mandatory minimum is solely in the hands of the prosecutor. The mere threat of a mandatory minimum sentence, particularly one as high as fifteen years, is often enough to intimidate defendants into practically any plea bargain that avoids the mandatory minimum. In many cases this actually gives prosecutor greater power over a defendant’s sentence than the judge – which is the opposite over how most of us envision the criminal justice system should be.

For the full details, read the Court’s decision in United States v. Johnson.


 

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This post was written by Andrew Winters

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