[Congressional Record Volume 156, Number 168 (Friday, December 17, 2010)]
[Senate]
[Pages S10516-S10517]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 4045. A bill to amend section 924 of title 18, United States Code, 
to clarify and strengthen the armed career criminal provisions, and for 
other purposes; to the Committee on the Judiciary.
  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

[[Page S10517]]

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. Sec.  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.
                                 ______