A Small Step

For any lawyer who practices a lot in federal court, the recent Supreme Court decision in Johnson v. United States is a pretty big deal. It involves the “Armed Career Criminal Act,” a part of 18 U.S.C. § 924 that has an enormous impact at sentencing for certain defendants convicted under the federal prohibited possessor law, 18 U.S.C. § 922(g). What the act does is increase the penalty from a ten-year maximum to a fifteen-year mandatory minimum and a maximum of life in prison for people who have three or more convictions for a “serious drug offense” or a “violent felony.”

The issue in Johnson was the definition of “violent felony,” specifically what courts call the “residual clause” of the definition. Although the definition includes some more clearly articulated sorts of other qualifying prior convictions, the residual clause simply says a violent felony is any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In two separate dissents prior to Johnson, one in James v. United States in 2007 and one in Sykes v. United States in 2011, Justice Scalia argued that the clause violates the Constitution’s prohibition of vague criminal laws. In Johnson, Justice Scalia finally got his way.

The defendant in Johnson pled guilty to being a felon in possession of a firearm and was sentenced to the mandatory minimum of fifteen years required by the Armed Career Criminal Act because he had three prior convictions, one of which was in Minnesota for unlawful possession of a short-barreled shotgun. The district court judge decided that conviction did in fact involve conduct that presents a serious potential risk of physical injury to another, and the Eighth Circuit agreed. Justice Scalia was more concerned about the residual clause itself.

The approach the courts take when applying the clause looks only to the fact the defendant was convicted, not the facts underlying the prior convictions. It is called the categorical approach, and although it may seem ridiculous, courts actually have to imagine an “ordinary case” and consider if that involves a serious potential risk of physical injury. On top of that, there is no real way to know how much risk is enough risk to qualify. Those uncertainties concerned Justice Scalia, and rightfully so. The most notable part of Johnson might be that it took so long for Justice Scalia to convince the rest of the Supreme Court that applying an almost completely subjective standard to a make-believe crime creates a due process problem.

The categorical approach and the “serious potential risk” language come into play in parts of the Sentencing Guidelines as well, though perhaps less dramatically, and there is no reason why applying an unclear standard to an imagined offense would be any more fair when serving as the basis for enhancements involving less time. Hopefully, Johnson will make waves elsewhere and is just the first step with many more to come toward a more reasonable approach to the extremely complex federal sentencing scheme. As the opinion notes, “[i]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.” Either way, Johnson is certain to result in a lot of people doing a lot of time having a new way to get their sentences reduced to something more proportionate to their crimes. Even if it is just an anomaly, that is certainly still worth something.