Today, in Brown v. United States, the Supreme Court held that state drug convictions count as ACCA predicates if they involved a drug that was on the federal drug schedules at the time of the state conviction. In Brown, legislatures had eliminated two substances from the relevant drug schedules – hemp and ioflupane – between the time of the petitioners’ original cases and their ACCA cases. Thus, the state and federal drug schedules did not match at the time of their ACCA cases. The petitioners argued that, under the categorical approach, their prior state cases were not ACCA predicates.
The Supreme Court rejected this argument, finding that the drug schedules at the time of the ACCA conviction are essentially irrelevant. In reaching this decision, Justice Alito highlighted the facts of the petitioners’ prior drug offenses at length, emphasizing that the petitioners had possessed marijuana and cocaine, “not hemp or ioflupane.” Justice Jackson, writing for the dissent, criticized the majority for “appearing to fixate on the facts of petitioners’ prior state drug offenses,” ignoring that “the entire point of the categorial approach is that courts may consider only the state crime’s elements, not the substances actually involved in that crime.”
The majority also rejected the argument that courts should not rely on outdated laws that had since been amended based on policy decisions that certain substances should not be criminalized. Instead, according to the Court, a prior drug conviction shows a “risk of future dangerousness even if the drug is no longer considered dangerous.” Analogizing to prohibition era laws, Justice Alito wrote that the “later legalization of alcohol did not by any means ensure that…bootleggers would take up legitimate jobs,” and that, instead, many bootleggers “shifted to other illegal enterprises.” Thus, in the Court’s view, even though drug schedules had changed, the petitioners were still at “risk” of continuing to commit crimes.
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