Sunday, March 13, 2016

GateHouse: High court examines reach of its decision on mandatory sentencing

Matthew T. Mangino
GateHouse Media
March 11, 2106
Last summer, the U.S Supreme Court decided that a white supremacist with a long criminal record should not be subject to the armed career-criminal mandatory minimum statute that enhanced his sentence from 10 years to 15 years.
Samuel Johnson pleaded guilty to being a felon in possession of a firearm. He told authorities he planned to attack “the Mexican consulate” in Minnesota and other “left” leaning targets. At his sentence hearing, a mandatory sentence was imposed based on his prior convictions for robbery, attempted robbery and possession of a “sawed-off” shotgun.
The late Justice Antonin Scalia wrote at the time that the Armed Career Criminal Act “fails to give ordinary people fair notice of the conduct it punishes [and] . . .  invites arbitrary enforcement.”  The court struck down the statute as unconstitutionally vague.
Since the ruling last June, appeals courts have been split over whether the decision should apply retroactively to all past cases where the statute was applied.
Now, less than a year later, the U.S. Supreme Court will answer that question.  
The new case is Welch v. United States; the court will hear arguments at the end of the month. The high court’s decision may lead to the release of thousands of prison inmates across the country.
In 2005, Gregory Welch was also found guilty of being a felon in possession a firearm, which would have netted him a sentence of 10 years or less. Welch ended up being sentenced to 15 years in prison because the judge found that he had three prior violent felony convictions; therefore, subject to the mandatory minimum sentencing requirements under the Armed Career Criminal Act.
After the court’s decision last summer, Welch sought to reopen his sentence without the aid of a lawyer. He represented himself in the lower courts and even in his initial filing asking the Supreme Court to hear his case.
What makes Welch’s case more compelling is that the Justice Department had originally opposed review by the Supreme Court. Now the Justice Department reversed course and that bodes well for Welch and other similarly situated offenders.
Another good sign for Welch is that in just the last few months the Supreme Court decided to apply retroactively a recent landmark decision.
In 2012, the U.S Supreme Court decided Miller v. Alabama banning the mandatory sentence of life without parole for juveniles.   
In January, the high court expanded the Miller decision, ruling it must be applied retroactively to an estimated 1,200 to 1,500 inmates concentrated in three states—Pennsylvania, Louisiana and Michigan.  
Why is the pending mandatory minimum case so important?
A court filing by a group of federal court and sentencing scholars sums up the gravity of this issue.
The scholars argued to the court, “The number of mandatory minimums has more than doubled since 1991, and excluding immigration offenses, the percentage of federal prisoners who are convicted under statutes carrying mandatory minimum penalties has increased from 27.8 percent in 1991 to 39.9 percent in 2010.”
The scholars further argue that an increasing percentage of federal prisoners are convicted of statutes with mandatory minimum penalties of 10 or more years.
Some suggest that mandatory minimum sentencing is responsible, in part, for the overcrowding of American prisons, which has been extremely costly for American taxpayers.    
The $6.9 billion budget for the Bureau of Prisons in fiscal year 2014 was 25 percent of the Justice Department’s discretionary spending, up from 18 percent in fiscal year 2010. The prison system has more employees than any other agency within the Justice Department—including the FBI.

—Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino
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