Fault Lines
14 October 2017

The Redemption of Justice Scalia, and the Thousands of Armed Career Criminals Who Never Were

July 8, 2015 (Mimesis Law) — Justice Antonin Scalia complained loudly when the Supreme Court decided Obergefell v. Hodges, the same-sex marriage case. So loud that few paid him any mind when that same day he announced the ruling in Johnson v. United States, a criminal-law case with huge implications for thousands of federal prisoners.

The decision in Johnson was a vindication for Scalia, who on two prior occasions had protested that the “residual clause” of the Armed Career Criminal Act, a handy tool prosecutors had used and abused to enhance federal sentences, was too confusing for its own good. In the past decade, Scalia had called the clause “Delphic” and “a drafting failure” that, if he had any say as to its future, should be struck for being unconstitutionally vague. And indeed, that’s precisely what the justice convinced five of his colleagues to do in Johnson, delivering a major win to the white supremacist who brought the case and scores who will benefit from his efforts.

Samuel Johnson was not a sympathetic defendant. He already had a lengthy record when in 2010, federal authorities suspected him of conspiring to attack the Mexican consulate in Minnesota, as well as “progressive bookstores” and “liberals.” He eventually pleaded guilty to being a felon in possession of a firearm, and the government requested an enhanced 15-year sentence under the Armed Career Criminal Act, or “ACCA,” premised in part on Johnson’s prior conviction under Minnesota law for unlawful possession of a short-barreled gun. This offense, the federal government argued and the trial court agreed, qualified for an enhanced sentenced under the ACCA’s residual clause, which applied whenever the past crime qualified as a “violent felony” that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

That latter quoted language is no more. Scalia’s reasoning for striking it was rather straightforward: One, the very text “leaves grave uncertainty about how to estimate the risk posed by a crime,” which means it gives a judge too much room “to imagine how the idealized ordinary case of the crime subsequently plays out.” And two, “the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.”

This analysis here is rather involved, but suffice it to say, Scalia pointed out that not even the Supreme Court’s own “repeated attempts and repeated failures to craft a principled and objective standard” to interpret the ACCA’s residual clause — and he named them all — had been satisfactory. This confusion led to “numerous splits among the lower federal courts, where it has proved nearly impossible to apply consistently.” What this meant in practice, given federal judges’ preference for bright-line rules and predictability, was that sentences where the ACCA was triggered were all over the place depending on the state you lived — a kind of “hopeless indeterminacy” that violates the Constitution.

“By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” Scalia wrote, “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”

A big ruling indeed, and one that is already making waves. A few days after the decision came out, the Supreme Court took action in dozens of cases implicating the now-invalidated part of the ACCA, vacating prior judgments and instructing lower courts to give them new sentences, “consideration in light of Johnson.”

And in a hopeful post, law professor and sentencing expert Douglas Berman predicted that thousands will benefit from Johnson, both prisoners wrongfully sentenced as armed career criminals and those sentenced as “career offenders,” a designation under the Federal Sentencing Guidelines with its own interpretive vagaries. And as noted by federal public defender Stephen Sady, even immigrants prosecuted under the perverse “illegal reentry” statute may benefit in the long run.

President Obama has come under scrutiny lately for his paltry use of the clemency power for nonviolent drug offenders. Johnson covers a different kind of prisoner: those with lengthy and even violent criminal records, but people no less deserving of a shorter sentence, all thanks to a ruling dealing with guns where the Antonin Scalia stuck to his guns.

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