(No. 09-479, 09-7073)
Update: On November 15, 2010 ruled unanimously against Abbott and Gould. Read more
This case represented an “Aha” moment for people concerned about the harshness of the federal gun statute, 18 U.S.C. sec. 924(c). That law tells judges they must sentence people convicted of drug crimes or crimes of violence who possessed or used a gun to an extra mandatory minimum sentence of at least five years for the gun, on top of the sentence for the drug or violent crime. Sentences can get very long under the gun statute as mandatory minimums of five, 10 or more years for underlying offenses are increased by five, seven, 10 or even 25 or more consecutive years for the gun offense.
As it turns out, there is a little-noticed, until now, “except” clause in the statute. It says: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or any other provision of law…” the court shall impose the consecutive gun mandatory minimum.
The issue is whether this provision means what it appears to say. For example, if a person will be sentenced to a 10-year mandatory minimum for a drug offense and is facing a five-year mandatory minimum for possessing a gun in connection with the drug offense, the except clause seems to say the five-year sentence cannot be imposed.
FAMM’s amicus brief in Abbott and Gould explains possible reasons why Congress added the except clause to the gun statute in 1998. Drawing on social science, the safety valve story, the rule of lenity and case studies of two FAMM members who would benefit from the literal reading of the except clause, amicus authors Stephanos Bibas, Stephen Kinnaird and their students at the University of Pennsylvania Supreme Court Clinic made a strong case for interpreting the statute so that the except clause had real impact. Unfortunately, the Court ruled against Abbott and Gould. You can find FAMM’s amicus brief here.