Sunday, June 28, 2015

A Failed Enterprise

The world changed in a lot of ways last Friday. Some changes were easily grasped; some will take longer to fully comprehend.  

The world changed for some people who are serving 15 years or more in prison. The statute that drove the no-less-than 15 year penalty was held unconstitutional, at least in part. Some of these people were, and are, actually innocent of the penalty. They may go home soon. This is retroactive. How much more reach will it have? Carl writes about this below. 

Here’s the case: Johnson v. US, reversing the Eighth Circuit in an 8-to-1 decision, with Justice Scalia writing for the majority and Justice Alito as the lone dissent.

Here’s the issue: The Armed Career Criminal Act, or ACCA, requires a mandatory fifteen-year sentence for a felon-in-possession if that person has three or more previous convictions of a violent felony or a serious drug felony. A violent felony includes any felony that “involves conduct that presents a serious potential risk of physical injury to another.” This is known as the residual clause. The Court held that this definition is too vague to be constitutional

Here’s the standard: A criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement, is unconstitutional. It violates the Due Process Clause of the Fifth Amendment. 

And the holding: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to the defendant’s and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.” Justice Scalia deemed the nine-year effort to salvage the residual clause “a failed enterprise.” 

Next: This is a 50-plus page decision, with concurrences and a dissent. Some of the issues are easy to grasp; some will take longer to absorb. But Johnson is important, and immediately so. More in-depth posts in the coming days, but for the short-term reactions, distinctions, and musings, read on. 

Tom:  The Court identified two vagueness concerns. First, a court must determine not whether the defendant's real-world conduct created a substantial risk, but rather whether an idealized "ordinary case" of the crime involved such a risk. But it's unclear how to define such an ordinary case and whether such a crime creates the requisite degree of risk -- should this be done through statistics, surveys, expert testimony, or judicial intuition? So this type of indeterminancy relates to the specific type of crime at issue. Second, a broader problem relates to the indeterminancy of the ACCA's "serious potential risk" standard. The four enumerated crimes vary widely in the degree of risk each poses, so it's impossible to distill a clear standard from them. This indeterminancy goes to both the degree of risk and the type of risk required to qualify a crime as a violent felony. Some crimes happen to be close enough to an enumerated crime (e.g., in James attempted burglary qualified because it was sufficiently analogous to the enumerated crime of completed burglary) and other crimes happen to be of a kind for which statistics are maintained (e.g., escape as in Chambers or eluding as in Sykes) but these may be outliers. Lower courts have also disagreed widely not only on their categorization of priors but also in their analysis -- the nature of the inquiry, the relevant factors, and the probability of harm required, and this supports the notion that the statute is indeterminate. 

Melody: On a more basic note, Johnson is limited to the residual clause definition. The four enumerated crimes that Tom refers to are in the text of the statute -- arson, burglary, extortion, and crimes involving the use of explosives. Those definitions remain in force (although still problematic, in some instances). 

Carl: This case will obviously lead to a lot of ACCA defendants getting new sentences. But it could also have dramatic impacts for many other defendants. For example, the definition of ACCA “violent felony”is virtually identical to the guideline definition of "crime of violence." And the Tenth Circuit has treated the analysis the same. So Johnson’s holding that the residual clause of the ACCA is unconstitutionally vague (as to what constitutes a "violent felony") could impact many cases where a “residual clause”-type analysis was used to enhance the sentence based on a prior conviction for a crime of violence (as defined in USSG 4B1.2(a)). 

Melody: Those will be good arguments going forward.  Johnson will be retroactive for the true ACCA/actual innocence cases. But is there a way back into the guideline "residual-clause"-type cases that are already sentenced? Probably not.

Kirk:  Shucks, I don't know. I am trying to figure out a way to rodeo up the PSRs that will let us find the clients who are affected by Johnson. I'm just the accountant who provides the raw material to the smart folks.

Dan: Persist. Endure. Survive. This is the message. This is the heart of it all. Because twice in the last ten years, a majority of the Supreme Court opined that the residual clause was not, in fact, unconstitutionally vague. Lower courts turned this dicta into law. We had lost. This battle was done. Until it wasn't. Put aside the future for a moment. Think about the past. And understand that what once was may no longer be. We learned this on a grand scale this June 26. We learned that, when right is on our side, we have a fighting chance. Keep up the fight. [Preach it, brother].

Kirk: Sure. This is the decision that emboldens the “exception proves the rule” crowd. Alamendarez-Torres, anyone? Keep filing those cert petitions. And keep telling clients that you will fix things at the Supreme Court. Even though you won’t.

Johnson is an extreme outlier. It happens. I know it does. But it happens once in forever. Dan has limited faith in appellate courts, because he negotiates them better than I ever could. But we have to recognize the odds. Which are bad. I vote for maximizing gain in district court. 

Melody: Or perhaps both. When you win at the appellate level, you can win big. Like Johnson. Or Brooks. Or Booker. I say this as I am neck-deep in an Almendarez-Torres challenge. Because that case WILL fall. 

Back to Johnson . . . .

Tom: The opinion may help in other vagueness challenges. For example, the majority rejects the notion that a statute cannot be void for vagueness unless it is vague in all applications -- that is, it rejects the notion that because there may be cases unquestionably within the scope of a statute, the statute is not vague. The Court recognizes that the relevant question is whether the statute is vague, and this one is. The Court distinguished other cases rejecting vagueness challenges because this statute, unlike statutes using phrases such as "substantial risk," requires a court to look not at what occurred on an actual occasion but at an abstract idealized case. This might open the door to vagueness challenges of some other recidivism statutes (or maybe even USSG provisions) to the extent that they require categorizing a prior conviction based on some attribute of an idealized version of the crime rather than, for example, its elements. Are there other statutes or USSG provisions similar to the residual clause in this regard?

Carl: The existence of a prior “crime of violence” determines whether a defendant qualifies as a career offender. It also impacts the offense level for basic felon-in-possession cases under USSG 2K2.1. Similarly, illegal reentry defendants see increases in their offense level under USSG 2L1.2 for prior crimes of violence. See, e.g., U.S. v. Ventura-Perez, 666 F.3d 670, 673 (10th Cir. 2012). And I'm sure there are even more enhancements for prior crimes of violence that are not immediately apparent. In short, Johnson was huge for defendants who received the mandatory minimum sentences under the ACCA. But it could have a much greater impact than just in ACCA cases. 

To be continued . . . . .

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