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Bar News - July 20, 2016


Federal Practice & Bankruptcy: Justice Scalia’s Lasting Impact on Criminal Law

By:

Every so often the United States Supreme Court decides a case that reworks federal criminal law. It did so in 2005 when, after being in force for more than 20 years, the Court declared in Booker v. United States that the mandatory federal sentencing guidelines violated the Sixth Amendment right to a jury trial.

To remedy this belatedly discovered constitutional violation, the Court declared that these guidelines were no longer mandatory but rather were only advisory, thereby returning substantial sentencing discretion to federal judges. The result has been that the defendant and the government can now advocate for a sentence harsher or more lenient than the guideline recommendation, based on the circumstances of the case or the characteristics of the defendant. Ten years later, it is clear that the result of this sea change has been generally to reduce the length of federal sentences.

In June 2015, the Supreme Court, in one of Justice Antonin Scalia’s last opinions, initiated another potential sea change. It has been unlawful under federal law since the 1960s for a person to be a felon in possession of a firearm. 18 USC 922(g). This statute provides that a violation of this statute subjects a defendant to a maximum of 10 years in prison. In 1984, Congress upped the ante by passing the Armed Career Criminal Act, which provides that a felon in possession of a firearm, who has been previously convicted of three “violent felonies,” is subject to a mandatory minimum of 15 years in prison, and up to a life sentence. Thousands of defendants have been sentenced to long terms of imprisonment under this Act for the 32 years that it has been in effect.

Congress defined “violent felony” in the Act as follows: “Any [felony] that (i) has as an element the use, attempted use or threatened use of physical force against the person of another or (ii) is burglary, arson or extortion, involves use of explosives or otherwise involves conduct that presents a serious potential risk of injury to another. 18 USC 924(e). The italicized portion of this statute is called the residual clause. Since 2007, the United States Supreme Court decided four cases in which it attempted to apply the residual clause to a series of state felony statutes. The Court’s decisions in these cases were roundly criticized for failing to provide clear standards for identifying a crime that “otherwise presents a serious potential risk of injury to another.”

In 2014, the Supreme Court agreed to decide a fifth case, Johnson v. United States (2016), to determine whether the unlawful possession of a short-barreled shotgun constituted a violent felony under the residual clause. After oral argument, the Supreme Court asked for additional briefing and argument on whether the residual clause was unconstitutionally vague under the Fifth Amendment, because it failed to give ordinary people fair notice of the conduct punished, or is so standard-less that it invites arbitrary enforcement. Id. at 2557. This was an argument that the Court had rejected in two of its earlier residual clause cases.

This time the Supreme Court changed course and held that the residual clause was so vague that it could not be enforced consistent with the due process clause. The Court focused on the method by which a crime is evaluated under the residual clause. This methodology focuses on the elements of the crime of conviction rather than the actual conduct committed by the particular defendant to break the law. Thus, under this approach, deciding whether a crime fits under the residual clause requires a court “to picture the kind of conduct that the crime involves in the ordinary case” and then determine whether this hypothetical ordinary crime involves conduct that presents too much risk of physical injury. Johnson, at 2557.

The Court concluded that there is no sound way to determine what qualifies as the ordinary case: Should a court use “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” By way of example, the Court asked what is the ordinary case of witness tampering – is it bribing a witness or is it threatening to harm the witness?

In addition to difficulty in defining the ordinary crime, the statute also provides little guidance in deciding how to determine how much risk is “serious potential risk.” The statute instructs that this analysis should occur by comparing the crime at issue to the enumerated crimes of burglary, arson, extortion or the use of explosives. The problem, however, is that the risk posed by these comparator crimes is hard to measure – burglary of an empty house does not create much risk of injury, but the use of explosives most surely does.

In sum, the Court concluded that “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, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Thus, the Court held in Johnson that “invoking 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.”

A year later, the ramifications of this seminal decision are uncertain. The Supreme Court earlier this year decided that Johnson applies retroactively to all Armed Career Criminal Act cases, even if the case became final before Johnson was decided. Welch v. United States (2016). Thus, the many Armed Career Criminal Act defendants, who have predicate crimes under the residual clause, will have their sentences reduced to no more than 10 years.

This much is clear. But much is left uncertain. Congress employed language similar to (but not identical to) the residual clause in other statutes. Most prominently, 18 USC 924(c), the statute that makes it unlawful to possess a firearm in furtherance of a crime of violence, defines a crime of violence in almost the same way as the Armed Career Criminal Act – with some possibly significant distinctions. The validity of this statute is now being litigated in the lower courts throughout the country. Invalidating the residual clause could mean that the convictions of many of the most violent federal offenders will be overturned.

The sentencing guidelines also use the same language as the residual clause of the Armed Career Criminal Act to define a career offender, which results in an enhanced guideline-sentencing recommendation. Everyone agrees that going forward the residual clause in the guidelines will not apply, but there is substantial litigation over whether this should apply retroactively to cases that became final before Johnson was decided. If it does, several thousand career-offender guidelines cases will be resentenced.

Johnson has already caused the reduction of many sentences for violent felons. If Johnson extends further, it could result in the vacating of many convictions and the resentencing of thousands of others. Only time will tell. How far it goes will be probably be up to the replacement for Justice Scalia, ironically Johnson’s author.


Seth Aframe has been an Assistant United States Attorney for the District of New Hampshire since 2007. He handles the office’s criminal appeals, as well as criminal and occasional civil matters in the district court. The United States Attorney for the District of New Hampshire is Emily Gray Rice.

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