What's a Violent Felony? Supreme Court Just Lowered the Standard

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By Lisa M. Schaffer, Esq. on January 16, 2019 11:40 AM

Repeated violent felonies can have dire consequences for some criminals. Many states, and the federal government, have three-strike type rules that require mandatory sentencing for certain convictions post-third-strike. Therefore, defendants can, and should, fight tooth-and-nail to keep convictions from coming under violent felony codes.

But what is "violent"? According to the United States Supreme Court, the slightest physical altercation between criminal and victim, even if just reflexive, should be considered violent.

Armed Career Criminal Act, Should Robbery Count?

In Florida, Denard Stokeling pleaded guilty to possessing a gun after burglarizing the Miami Beach restaurant where he was employed. Stokeling was prosecuted under the Armed Career Criminal Act (ACCA), a federal three-strikes type rule. Under the ACCA, if someone has been found guilty of three violent felonies or serious drug charges, and then found guilty of possessing a firearm, ACCA requires a mandatory minimum 15-year sentence.

The issue before SCOTUS was whether Stokeling had been convicted of three prior violent felonies or drug charges. In particular, one of the prior convictions was for robbery, in which he snatched a necklace the victim was wearing. SCOTUS needed to determine if the Florida statute under which Stokeling was convicted was indeed a violent felony statute.

Overcoming a Victim's Will Is Violent Enough for ACCA

SCOTUS voted in a 5-4 decision that Stokeling was convicted under a violent felony statute and therefore the ACCA sentence should be imposed. Writing for the majority, Justice Clarence Thomas said that Stokeling was properly convicted under Florida's robbery statute, and that statue is a violent felony.

The Florida robbery law requires that the victim resist the robbery, and in Stokeling's case, the victim did. The magnitude of the resistance was inconsequential. According to Thomas, "This is true because robbery that must overpower a victim's will -- even a feeble or weak-willed victim -- necessarily involves a physical confrontation and struggle ... 'capable of causing physical pain or injury' (the standard established in a prior case, Johnson v. United States.)"

Justice Sonia Sotomayor disagreed. In writing for the dissent, Sotomayor believes this threshold is extremely low, and probably includes pickpockets, shoplifters, and purse snatchers as violent felons. Mandatory sentencing for these felons, she says, does not advance public safety.

If you or someone you love has been arrested for a violent crime, contact a criminal defense attorney. You don't know what the future holds, and this charge may be the straw that breaks the camel's back later on in an ACCA or other three-strike conviction.

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