Under the Armed Career Criminal Act, a felon in possession of a firearm faces a 15-year minimum sentence if he has three prior convictions for violent felonies “committed on occasions different from one another.” Wooden was convicted in 1997 of burglarizing 10 units in a ministorage facility. The Justice Department argued that those 10 burglaries should count as 10 different “occasions,” even though they all occurred on the same night in the same building. A federal court agreed and sentenced Wooden to a decade and a half behind bars.
For a brief moment earlier this year, it appeared as though Wooden’s ordeal might come to an end. Although the Trump administration had defended Wooden’s sentence, President Biden seemed like a natural ally. As a senator, Biden introduced the 1988 amendment adding the “different occasions” language to the Armed Career Criminal Act, emphasizing that “career criminal” status should not apply to someone who commits a one-time crime with multiple victims. During the presidential campaign, Biden went a step further and called for an end to all mandatory minimums.
The Biden administration could have asked the Supreme Court to vacate Wooden’s 15-year sentence and send the case back down for a do-over. The solicitor general’s office, which represents the executive branch at the high court, has done that in the past when a lower court misclassified a defendant as a “career criminal.” But the Biden administration has stood by the Trump team’s position. Wooden’s fate now lies in the hands of the nine justices, who will hear his case this fall.
Wooden’s isn’t the only Supreme Court case in which the Biden administration’s position seems to be at odds with Biden’s campaign-trail vows. Another involves Jose Santos Sanchez and Sonia Gonzalez, a married couple from El Salvador who entered the United States without authorization in the late 1990s. They have lived here with government permission since 2001, when President George W. Bush granted temporary protected status to Salvadorans after two devastating earthquakes. Now, with the sponsorship of Sanchez’s employer, they seek green cards that would allow them to remain permanently and put them on a path to citizenship.
The Trump administration adopted a policy denying green cards to people with temporary protected status who, like Sanchez and Gonzalez, entered the country without authorization; it also sought to end protected status for hundreds of thousands of people from El Salvador and several other countries. On the campaign trail, Biden blasted Trump’s stance and promised a “path to citizenship” for temporary protected status holders who had built lives in the United States.
So you might expect Biden’s Justice Department to take the couple’s side. It didn’t happen. The solicitor general’s office dashed the hopes of immigration advocates and doubled down on the Trump team’s interpretation of the law. “Your Honor, we absolutely contend that the government’s position” — barring Sanchez and Gonzalez from obtaining green cards — “is the better reading of the statutory text,” a government lawyer told the justices.
A third case involves Dzhokhar Tsarnaev, convicted of the bombing that killed three people at the 2013 Boston Marathon finish line. A federal appeals panel in Boston vacated Tsarnaev’s capital sentences, with the panel members unanimously agreeing that the trial judge hadn’t done enough to ensure an impartial jury. For example, the jury foreperson had retweeted a post calling Tsarnaev a “piece of garbage,” while another juror posted about the case on Facebook, where a friend urged him to “get on the jury” to ensure that Tsarnaev would be “taken care of.”
At this stage, the only question is whether Tsarnaev will be executed; he no longer challenges his multiple terms of life imprisonment. And the Trump administration asked the Supreme Court to reinstate Tsarnaev’s capital sentences. Although candidate Biden pledged to end the federal death penalty, his administration has continued its predecessor’s effort to execute Tsarnaev.
Dropping the death penalty against Tsarnaev would no doubt be controversial, although polling suggests that the country is closely divided on whether Tsarnaev should be killed and most Boston residents oppose Tsarnaev’s execution. But in any event, Tsarnaev’s fate should not be determined by political convenience. Even supporters of capital punishment should be concerned that jurors tried Tsarnaev in the court of social media before they heard his case in a court of law.
So why hasn’t the Biden administration budged in any of these cases? In most administrations, the solicitor general’s office seeks to minimize flip-flops to maintain credibility with the court, but that is far from a hard-and-fast rule. In 2017, the Trump administration switched sides in four high-stakes cases — involving the appointment of administrative law judges, employer-mandated arbitration, public-sector unions and voting rights — and ultimately prevailed in all four. As former deputy solicitor general Michael Dreeben recently noted, there is little evidence that justices penalize an administration for changing its view as long as it is candid about its reasons for doing so.
The Biden administration, to its credit, has not chained itself to all of its predecessor’s positions. In February, the solicitor general’s office disavowed the Trump administration’s arguments in a constitutional challenge to the Affordable Care Act. It also asked the court to drop other cases involving Trump administration policies that Biden has rescinded — including Medicaid work mandates, the border wall and the Trump administration’s “remain in Mexico” policy (which barred asylum seekers at the southern border from entering the country while their applications are considered).
Its most recent turnaround came in a complicated case about crack cocaine sentencing reforms. In 2010, Congress reduced sentences for certain federal drug offenses involving at least five grams of crack cocaine. In 2018, Congress authorized offenders sentenced under the older punitive rules to seek shorter terms.
Tarahrick Terry was sentenced to more than 15 years in prison under the pre-2010 regime for possessing four grams of crack cocaine with intent to distribute. The Trump administration argued that Terry wasn’t eligible for relief because Congress hadn’t amended the sentences for offenses involving less than five grams. A day before the government’s brief in the case was due, the Biden administration switched sides and told the justices that it now believed Terry could request a reduced sentence under the 2018 law.
At oral argument this month, Chief Justice John G. Roberts Jr. asked the government’s lawyer about the change. “Prior administrations” have shifted positions, Roberts acknowledged, and “subsequent administrations are going to do that. But I wondered what standard your office applies in deciding when to take … that step.”
The government’s lawyer answered that the administration didn’t have a “specific set of procedures or guidelines” that he could “publicly share.” Court watchers commented on the 11th-hour turnaround, the chief justice’s query and the lawyer’s cryptic response. But we should pay as much attention to cases in which the administration hasn’t switched sides as to times that it has. That’s especially true when staying the course may preserve exactly the sorts of policies that Biden has pledged to end.
It’s probably too late now to salvage the Sanchez case: The court will hand down its opinion within a matter of weeks. In the other cases, though, the Biden administration still has time. By reversing course now, it can make progress on the president’s criminal justice priorities even if lawmakers won’t act.
A policy of consistency before the Supreme Court — followed inconsistently — provides little justification for sticking to positions that conflict with the values on which Biden campaigned.