Supreme Court's Johnson decision has enormous implications

The federal courts are beginning to see the potentially enormous implications of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), where it declared unconstitutional on vagueness grounds a provision of the federal Armed Career Criminal Act. Although decided less than six months ago, on June 26, already the federal courts of appeals have split over whether it applies retroactively and the 9th U.S. Circuit Court of Appeals has relied on it to strike down an important provision of federal immigration law.

The Armed Career Criminal Act provides that if a person is convicted of a crime involving the use of a firearm and the individual has three or more earlier convictions for a "serious drug offense" or a "violent felony," the prison term is a minimum of 15 years and a maximum of life. The act defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year ... 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 physical injury to another."

The Supreme Court has held that each of these clauses is to be treated as a separate category and for the Armed Career Criminal Act to apply a person's crime must fit into one of the categories. United States v. Taylor, 495 U.S. 575 (1990). The last category - "or otherwise involves conduct that presents a serious potential risk of physical injury to another" - is known as the "residual clause." In Johnson v. United States, the Supreme Court, in an 8-1 decision, declared that this provision was unconstitutionally vague.

Justice Antonin Scalia wrote for the court and declared: "We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law." Scalia concluded his majority opinion by declaring: "We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings ... are overruled. Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony."

The court's holding in Johnson has implications for a large number of federal criminal cases. First, does Johnson apply retroactively to those who were sentenced under the residual clause before June 26, 2015? Already the federal courts of appeals have split on this issue. The 1st and 7th Circuits have found that Johnson applies retroactively, while the 10th and 11th Circuits have held that it does not. See Price v. U.S., 795 F.3d 731 (7th Cir. 2015); In re Gieswein, 802 F.3d 1143 (10th Cir. 2015); In re Rivero, 797 F.3d 986 (11th Cir. 2015); Pakala v. U.S., 804 F.3d 139 (1st Cir. 2015). Several federal district courts also have ruled and are likewise split.

The better view is that Johnson applies retroactively, including to cases on collateral review, because it announces a new substantive rule, and substantive rules apply retroactively. The Supreme Court has held that "[n]ew substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms ... as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." By this definition, Johnson is substantive because it narrows the scope of a criminal statute - the Armed Career Criminal Act - by interpreting its terms. As the 7th Circuit explained in Price v. United States: "Johnson, we conclude, announced a new substantive rule. In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited 'a certain category of punishment for a class of defendants because of their status.'"

Second, there is the question of what other federal and state laws are unconstitutional on vagueness grounds because they use language similar to that of the residual clause in the Armed Career Criminal Act. Many federal statutes use a similar definition of "crime of violence" as the definition of "violent felony" in the Armed Career Criminal Act, though their residual clauses are slightly different. See, e.g., 18 U.S.C. Section 924(c) (use of firearm during crime of violence); 18 U.S.C. Section 924(h) (transfer of firearm for use in drug trafficking or crime of violence);18 U.S.C. Section 844(o) (transfer of explosive material for use in drug trafficking or crime of violence); 18 U.S.C. Section 16 (general definition for 18 U.S.C.); 8 U.S.C. Section 1101(43)(F) (general definition for 8 U.S.C.); 18 U.S.C. Section 3142 (pre-trial release).

Likewise, many provisions of the federal sentencing guidelines use language similar to that in the Armed Career Criminal Act. All of these provisions are now vulnerable to vagueness challenges in light of Johnson.

Recently, in DiMaya v. Lynch, 802 F.3d 1111 (9th Cir. 2015), the Court of Appeals applied Johnson and held that the Immigration and Nationality Act's definition of "aggravated felony" was unconstitutionally vague. Under federal law, a non-citizen is subject to removal from the country if he or she is convicted of an aggravated felony, which is a "crime of violence ... for which the term of imprisonment [was] at least one year." 8 U.S.C. Section 1101(a)(43)(F). That statute defines a "crime of violence" by reference to 18 U.S.C. Section 16, which defines it as: "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

This language, of course, is virtually identical to that in the residual clause of the Armed Career Criminal Act. The 9th Circuit followed the explicit holding of Johnson and declared this provision in the immigration law to be unconstitutional on vagueness grounds. This is likely just the beginning of laws with such language - both federal and state - being struck down on vagueness grounds.

Johnson v. United States received no headlines when it was decided. In part, this was because on the same day the Supreme Court declared unconstitutional state laws that prohibit same-sex marriage. But also it is because the vagueness of the residual clause of the Armed Career Criminal Act seems far too technical to be the stuff of news stories. But for the federal courts, and for the lawyers who practice criminal law there, it is hugely important and the effects are just beginning to be seen.