Close the Loophole that's Letting Violent Criminals go Free
Washington Examiner
By: Senator Tom Cotton (R-Arkansas) and Senator Orrin Hatch (R-Utah)

In April, a gang member convicted of nine felonies, Cornelius Spencer, was charged with raping two homeless Arkansans, a 62-year-old woman and a 21-year-old autistic man.

What's worse, these crimes would never have happened if Spencer had not been released a full five years before his sentence was up.

Because of a Supreme Court ruling that negated an important act of Congress, Spencer managed to slip through the cracks of our justice system. Until Congress acts to fix the law that was struck down, more hardened criminals will be able to roam the streets.

The law in question is the Armed Career Criminal Act, or ACCA. In 1984, Congress passed this law to protect the public from violent, repeat offenders like Cornelius Spencer. The law imposed a mandatory minimum sentence of 15 years for illegal possession of a firearm for offenders convicted of at least three different violent felonies or serious drug offenses on at least three separate occasions. While in force, about 600 offenders were charged under ACCA each year.

But in 2015, the Supreme Court declared that an important part of the law was unconstitutional. In Johnson v. United States, the Court ruled that how the law defined some "violent felonies" was unconstitutionally vague, specifically referring to a catch-all phrase that described "conduct that presents a serious potential risk of physical injury to another."

Because the law failed to specify which kinds of conduct presented such a risk, the court ruled that it didn't give the public fair notice of what conduct could be punished. The law was, therefore, in violation of the Fifth Amendment's due-process clause.

Importantly, the Court took no issue with the law's mandatory minimum penalty for certain violent, repeat offenders. It simply said that Congress needed to be more clear about what types of conduct could lead to an enhanced penalty.

Whatever the merits of the Court's decision, the results were tragic. The federal government was forced to prematurely release hundreds of felons back into the public. One example is Jerrod Baum, a neo-Nazi in Utah who had been charged with a long list of crimes: attempted murder, aggravated assault, and two counts of illegally possessing a firearm. He was released in 2016, four years before his sentence was up. Earlier this year, Baum was arrested and charged for kidnapping, stabbing, and throwing the bodies of two teenagers down a mineshaft. If the ACCA had still been in force, those two Utahans-just like those two Arkansans-would not have been harmed.

The only way to protect the public from hardened criminals like Spencer and Baum is to keep them off the streets, which is why we introduced the Restoring the Armed Career Criminal Act. Our bill would restore the mandatory minimum sentence of 15 years, but clarify which violent offenses qualify. Specifically, it would do away with the concepts of "violent felonies" and "serious drug offenses," and replace them with a single category: "serious felonies," defined as all crimes punishable by 10 years or more.

This much-needed clarification would solve a host of problems. First, it would comply with the Supreme Court's ruling. Second, it would respond to the Federal Sentencing Commission's recommendation that Congress clarify the statutory definition of violent felony. And third, because our bill would still require three felony convictions on three separate occasions, it would help federal prosecutors target the most dangerous criminals. In other words, this would not apply to low-level or first- or even second-time offenders.

It's been three years since the Supreme Court's ruling on the ACCA, during which time we've seen far too many innocent, law-abiding citizens suffer at the hands of hardened criminals. These violent offenders are the worst of the worst, and there's no excuse for letting them roam free because of a legislative technicality. We encourage our colleagues to join us in supporting this bill before more good people get hurt.