Serious Violent Felonies

The federal three strikes provision recognizes convictions for two categories of serious violent felonies—one enumerated, the other general. The question of what constitutes a conviction for an unenumerated "serious violent felony" under section 3559(c) seems to have proven as perplexing as what constitutes a "violent felony" conviction under the Armed Career Criminal Act (ACCA). Recent Supreme Court construction of the term "violent felony" in the ACCA may provide clarification for future cases arising under section 3559(c). In Johnson , Chambers , and Begay , the Court has made it clear that the ACCA's reference to violent felonies refers to purposeful, aggressive use of force capable of inflicting physical pain or injury upon another. They have argued (1) that requiring the defendant to prove to a judge by clear and convincing evidence the inapplicability of an injury free conviction offends the principles identified in Apprendi and its progeny; (2) that the section results in the imposition of cruel and unusual punishment in violation of the proscription of the Eighth Amendment; (3) that the mandatory sentencing provision impermissibly intrudes upon the constitutional prerogatives of the federal courts in violation of the separation of powers doctrine; (4) that section 3559(c) results in punishment for prior convictions in violation of the double jeopardy clause of the Fifth Amendment and in some instances of the constitutional prohibition on ex post facto laws; and (5) that, under some circumstances, application of section 3559(c) constitutes a violation of the equal protection component of the due process clause of the Fifth Amendment. 18 U.S.C. — Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if—
(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of—
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious drug offenses; and
(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.
The federal three strikes provision calls for a mandatory term of life imprisonment for defendants convicted of a serious violent felony who have two or more federal or state serious violent felony convictions or one or more of such felony conviction plus one or more federal or state serious drug conviction, 18 U.S.C. 3559(c). The qualifying violent felonies are those specifically enumerated within the section—murder, rape, violent robberies, extortion, among others—as well as unenumerated felonies, that is, any state and federal 10-year felony that involves the fact or risk of physical violence. The qualifying serious drug offenses are those punishable by imprisonment for 10 years or more under state or federal law. The section creates an exemption where defendants can prove that an otherwise qualifying conviction involved neither the fact nor risk of injury.
Defendants have regularly challenged the constitutionality of the section and whether their felony convictions constitute convictions for qualified offenses. The question of when a felony should be considered an unenumerated serious violent felony has proven perplexing, but recent Supreme Court construction of the term in another context may be illuminating. The Court has said in Johnson, Chambers, and Begay that for purposes of the Armed Career Criminal Act (ACCA) a violent felony is one that involves the purposeful, aggressive use of force, capable of inflicting physical pain or injury upon another.
Constitutional challenges have been to no avail, at least thus far. Defendants have argued without success (1) that requiring the defendant to prove to a judge by clear and convincing evidence, the inapplicability of an injury free conviction offends the due process and jury trial principles identified in Apprendi and its progeny; (2) that the section results in the imposition of cruel and unusual punishment in violation of the Eighth Amendment; (3) that the mandatory sentencing provision impermissibly intrudes upon the constitutional prerogatives of the federal courts in violation of the separation of powers doctrine; (4) that application of the section results in punishment for prior convictions in violation of the double jeopardy clause of the Fifth Amendment, and in some instances of the constitutional prohibition on ex post facto laws; and (5) that, under some circumstances, application of the section constitutes a violation of the equal protection component of the due process clause of the Fifth Amendment.
The text of section 3559(c) is appended.