Perhaps nothing proposed in Washington can be without controversy, but there is at least one provision in the Senate’s Sentencing Reform and Corrections Act (SRACA) that ought not result in furor. Simply put, a statute meant to apply to recidivists should be clarified that it only applies to recidivists.
Section 924(c) of Title 18 states that if a firearm is used, brandished, or discharged during a drug trafficking crime or a crime of violence, the sentence of the offender shall be enhanced by 5, 7, or 10 years, respectively. It further reads that:
(C) In the case of a second or subsequent conviction under this subsection, the person shall—
In SRACA, “second or subsequent conviction under this subsection” is struck and replaced in part by “violation of this subsection that occurs after a prior conviction under this subsection… has become final.” This “stacking fix” would make it clear that there must be some passage of time between the first conviction and the later convictions.
How these clauses are read determines if this section 924(c) as a recidivist statute or not. Justice Antonin Scalia, writing for the majority in Deal v. United States, read “second or subsequent conviction” to mean any conviction following a first conviction, including one in the same proceeding. Practically applied, this means that someone facing three counts of the same charge in the same case can receive the enhancement of five years on count one, and then an additional 25 years for each remaining count, quickly adding up to 55 years, excluding the sentence for the underlying charges. However, as the dissent in Deal explains, this more severe interpretation of 924(c) does not appear in case law until 19 years after the initial passage of the law. And even at the time of the Deal decision, lower courts applied this provision in varied ways—some opting for the longer sentences and some taking the “true recidivist” interpretation.
Unfortunately, legislative history is not helpful. Starting with the enactment of the statute and the subsequent amendments, the issue of recidivism has never been at the forefront, while the larger issues of drug, violent, and firearms offenses have been.
What is helpful is to look at the “model” recidivist statute: the “three strikes law” that has been enacted in roughly half the states. These laws require that after each felony, violent crime, or serious felony, depending that that state’s requirement, the penalty will increase, with the final “strike” resulting in a life sentence. What is instructive here is that each of the “strikes” must come from previous convictions separated by time and proceeding, and considering the underlying offense necessary, almost certainly separated by a stint in prison.
The principle is simple enough—we all recognize that prison is meant for learning lessons and rehabilitating—and to suggest otherwise is to suggest that the entire point of our corrections system is merely incapacitation. The 924(c) amendment proposed in SRACA would apply that principle in these cases. Someone who commits more than one crime before getting caught is certainly reprehensible, but a penalty for those crimes can be exacted through the sentence for that underlying crime. The 924(c) enhancement should be applied to “true recidivists” only—those who have not been reformed after serving time in a correctional facility.
The question of retroactive application of the fix is another issue altogether, though it seems moral and logical that if we decide something is unjust today and we can cure yesterday’s injustice, we ought to do it.
Conservative senators like Mike Lee and Jeff Sessions have said that they favor the “stacking fix.” This is an easy, just change in law that is a key part of well-rounded sentencing reform.