SCOTUS Clears Up ACCA - Rules Residual Clause Unconstitutionally Vague

Amidst all the attention following the Supreme Court's decision to declare bans on same-sex marriage unconstitutional, one case came and went completely under the radar: Johnson v. United States. The Johnson case involves how the federal courts should interpret the Armed Career Criminal Act ("ACCA"), and whether the current interpretation of the ACCA is unconstitutionally vague. Under the ACCA, which has been codified by 18 U.S.C. § 924(e), a federal firearms offender (namely, someone who has violated 18 U.S.C. § 922(g)), who has three prior "violent felony" convictions, whether in a state, federal, or a foreign court, will be subject to a mandatory minimum 15 year prison sentence.

The statute defines a "violent felony," in part, based on the following definition: if the offense "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." The language starting with "otherwise" is the so-called "residual clause." The Supreme Court had two issues to decide in Johnson: first, whether the "residual" clause is unconstitutionally vague (meaning an average person would fail to understand what conduct violates it and what conduct does not), and second, whether mere possession of a short-barreled shotgun "otherwise involves conduct that presents a serious potential risk of physical injury to another." Fortunately, the Supreme Court answered the first question with a resounding: YES, and the second question did not need to be answered.

Although predictably a strict constructionist, Justice Antonin Scalia sure knows how to write an opinion. Under the residual clause, courts are required to take a look at the prior crime and determine whether an "ordinary case" of that crime presents a serious potential risk of physical injury. Scalia uses the example of attempted burglary in his opinion. Some people might say that the "ordinary case" of attempted burglary "might involve being spotted by a police officer, a private security guard, or a participant in a neighborhood watch program… [who] may give chase, and a violent encounter may ensue." As Scalia points out, however, other people might say attempted burglary "is likely to consist of nothing more than the occupant's yelling 'Who's there?' from his window, and the burglar's running away." Scalia, (quoting another judge) then observed, "How does one go about deciding what kind of conduct the 'ordinary case' of a crime involves? A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?" The short answer to these questions is that the residual clause provides no answers. Scalia also remarked that this is the 4th ACCA case the Supreme Court has had since its promulgation interpreting the residual clause; if the Supreme Court can't figure out how to explain the statute so that lower courts can figure out how to apply it after 3 prior attempts, something's wrong with the law itself. Scalia thus concludes the residual clause is too vague to be constitutionally applied.

You might be wondering what it means for the residual clause to be declared unconstitutional. It basically means that part of the law stops operating and has no future effect. This means that unless and until Congress acts to amend the statute, a "prior conviction" for purposes of the ACCA can only be defined by the language remaining in the statute, which is pretty limited.

Another interesting question arises: What about those people who have previously been sentenced to a 15 year mandatory minimum due to application of the (now unconstitutional) residual clause? Is it really fair that they face such a steep price for violating a statute that has since been deemed unconstitutionally vague? Apparently that is a question for another day as Scalia did not address whether the decision in Johnson would be retroactive.

I expect that a challenge as to the retroactive applicability of the Court's ruling that the residual clause is unconstitutionally vague and thus unenforceable will be forthcoming in short order. Until that question has been decided, anyone who has been sentenced to the 15 year mandatory minimum penalty by operation of the now defunct residual clause, should strongly consider filing a habeas corpus petition under 28 U.S.C. § 2255, arguing that the rule announced in Johnson is retroactive. If you or someone you know is in this position, I strongly advise you to find an experienced federal criminal defense attorney like me who can help you draft and file the appropriate petition.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.