What Does Montgomery v. Louisiana Mean for Johnson Retroactivity?

On Monday, the Supreme Court issued its decision in Montgomery v. Louisiana. Montgomery held that the rule announced in Miller v. Alabama—that juvenile offenders convicted of a homicide offense cannot be sentenced to mandatory life without parole—was retroactive. While new constitutional rules ordinarily do not apply to convictions that have become final, new “substantive” rules do. And Montgomery held that Miller was substantive and therefore retroactively applicable to cases that have already become final.

But Montgomery isn’t the only retroactivity case the Court has this term. Two weeks ago, the Court added another case about retroactivity, Welch v. United States. Welch will answer whether the rule announced in Johnson v. United States—that ACCA’s residual clause is unconstitutionally void for vagueness—is a substantive rule that applies retroactively.

Does Montgomery contain any hints about what the Court might do in Welch? Mining one opinion for hints about what the Court might do in another opinion is always a little risky. The Justices might not have that future case in mind as they sit down to write the opinion. That’s almost certainly the case for Montgomery. Montgomery was issued less than two weeks after the Court granted cert Welch, and so the opinions in Montgomery were probably drafted well before the Court even considered granting the petition in Welch.

But that doesn’t make the speculation any less fun, and so I’ll offer some thoughts on what Montgomery might reveal about what the Court will do in Welch. The short answer is that it doesn’t reveal much—Montgomery quotes some language from prior cases that already suggested Johnson was retroactive. But it also quotes some other language that, if taken entirely out of context, might suggest that Johnson is not retroactive.

First, Montgomery reiterates (in several places) that “substantive rules” include “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” This is, of course, the case for defendants whose ACCA sentences depended on the residual clause. Johnson reduced their statutory maximum term of imprisonment to 10 years, when previously they were subject to a statutory minimum term of 15 years. Johnson prohibited anything more than a 10-year term of imprisonment for defendants convicted of a certain offense (being a felon in possession of a firearm, with certain criminal history).

Second, Montgomery emphasizes the idea that “substantive rules” are rules that “necessarily carr[y] a significant risk that a defendant …. faces a punishment that the law cannot upon him.” Under that definition, Johnson is even more substantive than Miller. Miller did not forbid States from sentencing some juvenile offenders to life without parole. Montgomery even acknowledged this: “Miller … did not bar a punishment for all juvenile offenders.” But Johnson did take a particular punishment off the table for defendants whose ACCA sentences depended on the residual clause: They cannot face a punishment of more than 10 years. Montgomery reasoned that Miller was nonetheless substantive because “Miller did bar life without parole … for all but the rarest of juvenile offenders.” There is no need to even get into the probabilities with respect to Johnson. The import of the decision is clear: All defendants whose ACCA sentences depended on the residual clause cannot face more than a 10-year term of imprisonment.

Third, the number of prisoners that will be resentenced after Montgomery isn’t that different from the number of prisoners that would have to be resentenced if Welch held that Johnson is retroactive. The number of prisoners affected by the decision doesn’t make it into the opinion in Montgomery, but the Court had before it some estimates: The ABA estimated that, when Miller was decided, close to 2250 juveniles were sentenced to mandatory life without parole, and 2500 juveniles (including the 2250) were sentenced to life without parole. And Montgomery makes clear that almost all of these offenders must be resentenced because Miller “bar[red] life without parole … for all but the rarest of juvenile offenders.” The number of prisoners with potential Johnson claims is probably similar: There are some 6000 federal prisoners who were sentenced under ACCA, but only prisoners whose ACCA sentences depended on the residual clause must be resentenced. ACCA still imposes a mandatory 15-year term of imprisonment for felons in possession of a firearm with three or more convictions for “serious drug offenses,” specifically enumerated offenses, or offenses that have as an element the use of force. And determining which prisoners’ ACCA sentences depended on the residual clause cannot be any more difficult than the parole hearings imposed by Miller (and Montgomery), which require a “hearing where ‘youth and its attendant characteristics are considered’” along with other sentencing factors.

Fourth, Montgomery really drives home the idea that constitutional rules about sentences are no less substantive than constitutional rules about convictions. That is, it doesn’t matter that, after Johnson, the defendant’s conduct—being a felon in possession of a firearm—is still unlawful. Johnson is substantive because it means a certain punishment—a term of years exceeding 10 years—is unlawful for defendants whose ACCA sentences depended on the residual clause. Montgomery repeatedly refers to substantive rules in terms of conduct and sentences: “Substantive rule[s] … eliminate[] a State’s power to proscribe the defendant’s conduct or impose a given punishment”; “[T]he original sphere for collateral attack … was … because the sentence was one the court could not lawfully impose”; etc.

The idea that constitutional rules about sentences are no less substantive than constitutional rules about convictions helps address some scattered statements which, if taken out of context, might be used to suggest that Johnson is not retroactive. For example, Montgomery quoted Justice Harlan’s opinion in Mackey v. United States—which the Court later adopted in Teague v. Lane—stating that substantive constitutional rules are “those that place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Montgomery also uses slightly different formulations of that definition elsewhere.

But Justice Harlan’s opinion in Mackey, and the Court’s subsequent retroactivity decisions applying Justice Harlan’s framework, don’t use this phrase to define the entire category of substantive rules. So, for example, even though Justice Harlan said substantive rules include constitutional rules that bar States from prohibiting certain conduct, the Court has made clear that substantive rules also include constitutional rules that bar States from imposing certain punishments (on account of the defendant’s status or offense). The Court has also made clear that substantive rules include rules that narrow the scope of a criminal statute, and therefore result in certain primary conduct not being prohibited by statute. And these rules are substantive even though the State could lawfully punish that behavior. For example, Bousley v. United States held that the Court’s prior decision in Bailey v. United States was substantive and retroactive. Bailey had narrowed the scope of 18 U.S.C. § 924(c)(1), such that the statute did not prohibit certain kinds of firearm possession. Congress could have later amended the statute to prohibit those forms of possession. In fact, it did so after Bailey. But that didn’t affect the retroactivity analysis. The same should be true here: The fact that Congress could lawfully impose a higher sentence on defendants based on their criminal histories doesn’t make the rule announced in Johnson any less substantive. Montgomery makes clear that it doesn’t matter for purposes of retroactivity that Bailey involved what conduct a statute prohibited, whereas Johnson involved what penalty a statute imposed. And it strains imagination to think that a rule is less “substantive” if it holds that a statute is facially unconstitutional rather than interpreting the statute’s terms. The effect of both kinds of rules is the same: They result in certain conduct no longer being prohibited, or a term of years exceeding the statutory maximum for the defendant’s offense of conviction. Those effects are what make the rules substantive, not the reasoning in the decisions.

Fifth, Montgomery’s language about what are procedural—as opposed to substantive—rules cannot be fairly interpreted to describe the decision in Johnson. “Procedural rules,” Montgomery maintained, “are designed to enhance the accuracy of a conviction or sentence by regulating ‘the manner of determining the defendant’s culpability.’” So, for example, if Johnson had issued a rule about the kind of evidence prosecutors could use to prove a defendant’s criminal history, it would be procedural. But that’s not what Johnson did. Johnson invalidated ACCA’s residual clause. It’s not about accuracy, or the sentencing process. The decision means that defendants whose sentences depended on the residual clause could lawfully be sentenced to only 10 years of imprisonment. Under ACCA’s residual clause, however, they were sentenced to at least 15.

Trying to read between the lines in Montgomery doesn’t reveal anything about Welch. But Montgomery also doesn't change the fact that Johnson is clearly substantive and retroactive under existing law.