The Atlanta Journal-Constitution
Supreme Court ruling upends old convictions in gun crimes
A decade ago, the harsh punishments meted out to members of a Virginia group that trained for religious combat by playing paintball were hailed by the Justice Department as a victory in the war on terrorism and lambasted by Muslim groups as discrimination.
But a spring Supreme Court decision has led to freedom for two of the men, who were dealt lengthy sen- tences. A third man, already released from prison, also had his conviction undone, and more are appealing.
Several dozen other defen- dants in unrelated cases have seen their convictions thrown out as well, and hundreds more hope to, based on Sessions v. Dimaya, a decision on immigration law that also carries significant weight in the realm of gun crimes.
By deeming the definition of a violent felony in immigration law unconstitu- tionally vague, the Supreme Court put in peril an identical phrase used to put armed criminals in prison with long mandatory minimum sen- tences.
It’s part of a years-long push within the court that began with the late justice Antonin Scalia against catchall legal clauses that punish the risk of violence rather than actual violence. The case comes as judges have shown an increased willingness to limit legislation — passed during times when crime was surging — that broadly mandated harsher punishments.
This particular disputed language “has been used to put thousands upon thousands of defendants in prison for far longer than they other- wise would have been,” said Aaron Katz, an attorney representing criminal defense attorneys and opponents of mandatory minimums. “The government for two years has been planning for [this clause] to be invalidated, and that’s why they fought Dimaya so hard.”
In fiscal year 2016, the U.S. Sentencing Commission says there were close to 2,000 people convicted under the statute, which adds substantial mandatory minimums to violent crimes involving firearms. More than 52 percent of those convicted were black and nearly 30 percent were Hispanic; 16 percent were white.
It’s unclear how many of those cases relied on the part of the law now in doubt. When a crime involves actual violence or the threat of it, the law still stands. At issue are crimes that merely pose “a substantial risk that phys- ical force” would be used.
That’s the same language Justice Elena Kagan called unconstitutionally “fuzzy” in the Dimaya decision. Across the country, people con- victed under that wording are appealing their cases. Defense attorneys say those cases should be reversed across the board, includ- ing in convictions where it wasn’t clear whether the jury found violence was involved or just the risk of it. The Justice Department argues the vagueness can be eliminated if judges and juries look at the facts of each case.
What the Supreme Court found unacceptable in Dimaya was that it was doubly vague. The amount of risk that qualifies as criminal is not defined. On top of that, under long-running precedent, judges or juries are not considering the defendant’s actions.
Instead, they look at the risk in an “ordinary case” where such a crime is committed.
In an earlier decision on similar language, Scalia argued that trying to decide whether the typical example of a crime does or does not risk violence involves too much specu- lation and abstraction: “To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence?”
How broad the impact will be is still unclear. The Supreme Court plans to take up the issue next year.
However, the acquittals in the cases around the “Vir- ginia jihad network” show how the Dimaya decision has rippled already through lower courts.
This summer, an Alexandria, Virginia, federal judge, Leonie Brinkema, released Seifullah Chapman and Masoud Khan from prison, writing that in light of the Supreme Court decision, neither’s convictions stand under the firearm law.
Ali al-Timimi, a prom- inent Muslim cleric given life in prison for encourag- ing Khan and others to fight in Afghanistan after the Sept. 11, 2001, terrorist attacks, is also appealing his firearm conviction even though a reversal would not affect his sentence. So is another member of the conspiracy, Muhammed Aatique, who was released in 2007.
The Department of Justice has tried to salvage these and other convictions by arguing that the law is constitutional because juries and judges can decide for themselves in each case whether vio- lence was a substantial risk.
Brinkema accepted the Justice Department argument, but she decided that Chapman and Khan’s convic- tions should be overturned based on the evidence presented at trial.
The mandatory minimum was passed as part of the Gun Control Act of 1968, legislation inspired by the assassi- nations of Martin Luther King Jr. and Robert F. Kennedy.
“The statute is so shoddily drafted,” said Leah Litman, a law professor at the University of California at Irvine. “It’s not language that lends itself to clarity but often leads to severe penalties.”