The United States Supreme Court reversed a federal criminal sentence last week that was imposed on a man who had a lengthy record. The Defendant fell into the maw of the much-maligned Armed Career Criminal Act (the “ACCA”). Under the ACCA, a person who possesses a firearm and who has three or more qualifying prior convictions is sentenced to a minimum of 15 years in custody, with the maximum of life imprisonment. What is called the “residual clause” of the law makes a person eligible for this heavy-duty punishment if any of his or her three prior crimes “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court, in a very rare move, held this language to be so imprecise as to violate the Constitution. The case is United States v. Johnson, and can be accessed here.
A couple of important things about the ACCA before we discuss the decision. First, the law was part of that horrible mess enacted in 1986 when our Nation’s rulers decided to impose amazingly long sentences for a whole variety of crimes. This mess included the now-derided mandatory minimum sentences for various crimes, mostly involving drugs, which I wrote about recently here. After these laws passed, most experienced practitioners in the federal criminal justice system could not even wrap their heads around fifteen years in custody for merely possessing a gun. I recall a number of cases where prosecutors simply ignored this statute, believing it could not mean what it said. By the early 1990’s, however, prosecutors got more comfortable in asking for these lengthy prison sentences. Pretty soon, we all became accustomed to it, and defense attorneys then started challenging whether this penalty really applied to all of the Defendant’s prior crimes.
These challenges eventually worked their way up to the Supreme Court, resulting in five separate cases over a nine-year span. The first case told judges to use a “categorical approach” when deciding if the Defendant’s prior crime “involved” a “serious potential risk of physical injury to another.” In other words, look only at the way the crime was defined, not what the person did. Succeeding cases looked at whether various crimes like DUI, attempted burglary, not reporting to prison, or vehicular flight from the police did or did not fall within this imprecise standard of serious potential risk of physical injury to another.
Last week, the Supreme Court took the highly unusual step of deciding that this phrase is so imprecise that it violates the Due Process Clause of the Constitution. The Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under 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. Because the ACCA mandates that a judge assess the risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. Furthermore, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.
Even more surprisingly, the decision last week overturned the part of the earlier decisions which said that the law was not “void-for-vagueness.” First-year law students learn about stare decisis, the principle that courts must be bound by earlier rulings on the same subject. The Supreme Court last week went to great lengths to point out how unworkable the law was. The justices explained how the earlier ACCA decisions had tried very hard to make the statute somehow comprehensible, but that effort failed, because federal courts were all over the place when applying the ACCA to various prior crimes.
I happen to think this is part of a trend, as I have discussed previously. The U.S. went a bit bonkers in the late 1980’s on criminal justice issues, resulting is our Nation having more people behind bars than almost any other country. The pendulum is swinging the other way , and this ruling from last week is just one point along that spectrum of more sensible views on crime.