Is Johnson v. United States A Sleeper?

Justice Scalia’s majority opinion in Johnson v. U.S., striking down the “residual clause” of the Armed Career Criminal Act (ACCA) as void for vagueness, is written narrowly. What made the residual clause vague was that its definition of “violent felony” to include any felony that presents a “serious potential risk of physical injury” applied not to the actual facts of real cases, but to “idealized,” judicially-imagined, commissions of the felonies in question. After all, how dangerous is the “ordinary” escape from prison or the “ordinary” possession of a firearm? Without comprehensive statistics, which do not exist, there is no non-arbitrary way to say.

Arguing against vagueness, the government cited dozens of federal and state criminal statutes that predicate liability on risk. If the ACCA residual clause is vague because it pivots on the notion of risk, then all these other statutes must be vague as well, the government insisted. Nonsense, responded Justice Scalia. All those other statutes measure risk on the basis of the actual facts of the case at bar, which is constitutionally acceptable. The residual clause measures risk on the basis of hypothetical facts. This, said the Court, makes the provision struck down in Johnsonvirtually unique.

Except it’s not unique. The provision involved in Johnsonis actually only one of four residual clauses in federal sentencing law that pivot on risk. The Career Offender provision in the federal sentencing guidelines contains a residual clause that is literally identical to the provision struck down in Johnson, so that provision must be unconstitutional. Next, it turns out that there is a second residual clause in the ACCA. This other ACCA residual clause defines “crime of violence” to include any felony that “by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” This provision suffers from the same infirmity as the one struck down in Johnson, namely, that it measures risk based on abstract conceptions of felonies rather than on actual facts. It will be hard for courts to distinguish these two provisions, vagueness-wise, with a straight face.

Finally, 18 U.S.C. § 16 contains a definition of “crime of violence” that is literally identical to the one in the ACCA. If these crime-of-violence residual clauses get invalidated, it will not only affect federal sentencing, it will affect immigration as well. The immigration laws authorize removal of immigrants for aggravated felonies, the definition of which includes – you guessed it – “crimes of violence” as defined in 18 U.S.C. § 16.

Then there is the vital question of retroactivity. The 1989 landmark case of Teague v. Laneestablished the following general rule: “[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” But Johnsondoes not announce a new rule of criminal procedure – it renders a criminal code provision unenforceable in all cases, no matter how perfect the process any particular defendant may have been accorded. Far from being a rule respecting procedure, Johnsontells the government, “Thou shalt not give additional punishment to anyone based on this clause.” Law enforcement agents didn’t violate the Constitution, the legislature did. Johnsonclearly should apply retroactively, and I believe courts will (reluctantly, eventually) comply.

Johnson v. U.S. certainly won’t have the earth-shattering effects of Obergefell, King v. Burwell, or the redistricting cases. But its effects will not be limited to a single statute, or even to a single group of people, and those whose lives are touched by Johnsonwill be touched quite profoundly. It is a candidate for sleeper of the Term.