Saturday, January 10, 2015

SCOTUS: Breaking ACCA News

On occasion, the Supreme Court will ask for supplemental briefing and for a case to be reargued.  It happened yesterday in Johnson v. US.

SCOTUS granted cert and heard argument last November about whether a prior conviction for possession of sawed-off shotgun was a violent crime for purposes of Armed Career Criminal Act (the one that changes the penalty for gun possession from a cap of ten years to a floor of 15 years). We talked about it here and here. The original issue was quite narrow.

Now, the Supreme Court ordered the case to be "restored to the calendar for reargument" and for supplemental briefing on this: whether the residual clause of the ACCA is unconstitutionally vague.

Justice Scalia has taken the position (that is, dissented) in other cases, notably Sykes v. US, (fleeing and eluding is a violent crime), that the clause is unconstitutionally vague. "The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come." This turn in Johnson is a  good sign that more of the Court may follow his lead. Because he is right. And if this is the case, it will almost certainly affect the career offender guideline, which carries essentially the same residual clause for crimes of violence.

For now, continue to preserve objections to any crimes categorized under these residual clauses. A favorable ACCA ruling could well be retroactive, as Professor Berman notes,

This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.

Stay tuned . . .

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