Johnson v. United States: part of Armed Career Criminal Act struck down by Supreme Court

In the case Johnson v. United States, the Supreme Court just struck down a provision of the Armed Career Criminal Act that says that someone’s past crimes count as “violent” if they involve a risk of serious injury to another person — even if the crime didn’t actually involve violence.

The case was an 8-1 decision, but that’s a little misleading. Six of the justices, led by Justice Antonin Scalia, ruled that the provision in question was “unconsitutionally vague.” Another two felt that the provision was constitutional, but that owning a sawed-off shotgun shouldn’t count.

The court has been gunning for this clause for a while — this is actually the fifth case in seven years dealing with it. For a while, they were waiting for Congress to fix it, but they’ve finally decided to strike it down.

The Armed Career Criminal Act is a federal variation of the “three strikes, you’re out” laws that have been passed in several states — though in this case, it’s closer to “four strikes.” If someone has three violent felonies (or “serious” drug crimes) on his record, the law tacks an extra five years onto his fourth conviction.

The problem is what crimes count as “violent felonies” — since the law covers both state and federal crimes, and different states define violent crimes and felonies differently, it’s not a term with a useful legal definition.

The law sets out some specific standards for “violent felonies.” But it also included a catch-all, just in case: any crime that involves “conduct that presents a serious potential risk of physical injury to another” gets counted as violent. That’s the clause that the Supreme Court just struck down.

Samuel James Johnson is a white nationalist with a group called Aryan Liberation. He was convicted of gun crimes and sentenced to fifteen years — because the judge counted a past conviction for possession of a sawed-off shotgun as one of the “violent felonies” on Johnson’s record. The judge explicitly said that if owning a sawed-off shotgun didn’t count as a violent felony, Johnson would have gotten ten years or less. That set up a case about whether owning a sawed-off shotgun is a crime that “presents a serious potential risk of physical injury.”

But the Supreme Court was frustrated by having to decide on a case-by-case basis which crimes should be counted as violent felonies and which shouldn’t. So after hearing arguments about the sawed-off shotgun, they actually told both sides to come back for a second round of oral arguments — and to focus on whether the “serious potential risk” clause of the law itself was constitutional.

As Justice Scalia put it, cases that ask whether individual crimes count as violent felonies have been going through the courts for years, which should have given Congress an opportunity to fix the text of the law: “If Congress hasn’t done it,” he said in the oral argument for this case, “then it seems to me that our job is over.”

Scalia’s opinion was also pretty blunt in saying the clause was a mess:

Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but “their sum makes a task for us which at best could be only guesswork.” United States v. Evans, 333 U. S. 483, 495 (1948). 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.

The Supreme Court is forcing Congress to make a choice. It can fix the law by coming up with a more precise definition of what actually counts as a violent felony. Or it can decide it’s satisfied with a much more limited Armed Career Criminal Act, that only hands out long sentences in the particular circumstances laid out in the more specific parts of the law.

Meanwhile, there may be hundreds of federal prisoners who are serving longer sentences thanks to the clause the Supreme Court just struck down. (There are about 7,000 prisoners serving time under the Armed Career Criminal Act, but many of them probably qualified for the longer sentences under parts of the law that are still in place.) Many of them to have the ability to apply for reduced sentences. But the law here is pretty complicated, and the lower courts will have to figure out which ones can get their sentences reduced.