Is the “residual clause” in the Armed Career Criminal Act unconstitutionally vague?
(Note: this preview is for re-argument of Johnson v. United States. For the earlier arguments, see the preview for Johnson v. United States - Nov. 2014.)
The Supreme Court will hear rearguments in this case to determine whether the “residual clause” in the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. The original issue on appeal urged the Court to consider whether possession of a short-barreled shotgun is a violent felony under the ACCA, but after oral arguments, the Court ordered a rehearing to determine whether the ACCA’s residual clause itself is unconstitutionally vague. The Petitioner, Samuel Johnson, argues that the residual clause is unconstitutionally vague and violates due process. In opposition, the Respondent, the United States, contends that the clause is not unconstitutionally vague and successfully provides direction to judges and citizens when determining how to conform their actions to the law. The outcome of this case may effect the role of judges in interpreting the residual clause of the ACCA, the uniformity of sentencing across different states, and the level of notice people have regarding whether a crime is a violent felony under the ACCA.
Questions as Framed for the Court by the Parties
Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague.
The Federal Bureau of Investigation started investigating Samuel James Johnson’s participation in the Aryan Liberation Movement (“Movement”) in 2010. Johnson intended to counterfeit United States currency in order to support the activities of the Movement. On several occasions, Johnson told undercover agents that he manufactured explosives for the Movement and showed agents that he had a large collection of weapons, including an AK-47 rifle. Because he possessed these firearms, Johnson was arrested in April 2012. Johnson was charged with six counts in his eventual indictment—four counts of being an armed career criminal in possession of a firearm and two counts of being a felon in possession of ammunition.
In exchange for the dismissal of the other five counts, Johnson pled guilty to one count of being an armed career criminal in possession of a firearm. The presentence investigation report listed Johnson as having three prior violent felonies: attempted simple robbery, simple robbery, and possession of a short-barreled shotgun. Under the Armed Career Criminal Act (“ACCA”), Johnson qualified as an armed career criminal because of his past violent felonies, and was subject to a mandatory minimum fifteen-year prison term. Johnson challenged the classification of his prior felonies as violent felonies, but the United States District Court for the District of Minnesota (“district court”) ruled that all three felonies were violent. Additionally, Johnson argued that the ACCA is unconstitutionally vague, but the court disagreed. The district court sentenced Johnson to 180 months in prison.
Johnson appealed to the United States Court of Appeals for the Eight Circuit (“Eighth Circuit”), arguing that the court should not consider his convictions for attempted simple robbery and possession of a short-barreled shotgun violent felonies under the ACCA, and that the ACCA suffers from unconstitutional vagueness. The Eighth Circuit ruled that the district court properly classified Johnson’s past convictions as violent felonies under the ACCA. The court reasoned that, under the statute, a crime is a violent felony if it: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another;” (2) “is burglary, arson, or extortion, involves the use of explosives;” or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” According to Eighth Circuit precedent, possession of a short-barreled shotgun falls into the third category—the “residual clause”—for purposes of the ACCA. Additionally, the court held that attempted simple robbery is a violent felony. The Eighth Circuit also ruled that the ACCA was not unconstitutionally vague.
Finally, Johnson appealed to the Supreme Court of the United States. The Supreme Court granted certiorari to determine whether possession of a short-barreled shotgun is a violent crime under the ACCA. However, after hearing oral arguments, the Court decided to have a rehearing on the issue of whether the residual clause of the ACCA is unconstitutionally vague.
With this rehearing, the Court will consider whether the text of the residual clause of the ACCA is unconstitutionally vague. The residual clause of the ACCA categorizes a crime as a violent felony if the crime “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Johnson argues that the residual clause is unconstitutional, contending that the statute’s language is vague, courts lack clarity in interpreting the clause, and that the clause violates due process. The United States counters that the standard for finding a statute unconstitutional is high, and that because the ACCA’s residual clause has clear language, interpretations of the ACCA are reviewed de novo by an appellate court, and the ACCA does not violate the due process, the statute is constitutional.
TEXTUAL VAGUENESS OF THE RESIDUAL CLAUSE
Johnson argues that because the language of the ACCA’s residual clause is vague and unclear, it is unconstitutional. Johnson contends that the lack of clarity leads to subjective interpretations by the courts because they are left without textual guidance from the statute. In particular, Johnson first credits vagueness to the inclusion of the word “otherwise” directly following four concrete examples of crimes that fall within the clause. Johnson explains that the Supreme Court treats the word “otherwise”—in the context of the residual clause—to mean that the level or risk “must be the same as the enumerated offenses that precede it.” Therefore, Johnson argues that the Court’s interpretation of the word “otherwise” is different from its dictionary and common definition of “in a different way or manner.” Additionally, Johnson goes on to assert that the statute’s vagueness is due to the words “serious potential risk” being used together, since the phrase is unclear to the point that it has no meaning. Lastly, Johnson further contends that the Court should not compare the language used in the residual clause to that used in other comparable statutes because the other statutes do not include the word “potential”, and do not list four examples of offenses followed by the phrase “otherwise.”
The United States, however, counters that the language used in the residual clause is not ambiguous and even if it were, it does not meet the standard to be deemed unconstitutional. The United States contends that the residual clause is not unconstitutional because the standard requires Johnson to show that the statute “could not intelligibly be construed to apply to any offenses . . . .” To do so, the United States notes, the Court would have to overturn Supreme Court precedent, which seems to weigh against finding the statute unconstitutional. To Johnson’s argument regarding including the word “otherwise” after four enumerated offenses, the United States maintains that the statute is precise instead of vague.This is so, the United States argues, because the four enumerated offenses are examples of the level of risk offenses should meet in order to fall under the clause. Furthermore, the United States contends that even if the risk of the enumerated offenses varies, this does not make the residual clause uninterpretable. The United States agrees with Johnson’s definition of the word “serious”, but argues that Johnson is using the wrong definition of “potential.” The United States contends that the word “potential” was used in the residual clause to convey that the risk presented in a certain offense does not need to be present in every instance. In other words, the United States argues that the word “potential” suggests that the Court should review the risk in terms of the “ordinary case”, not by considering the specific facts of each case. In addition, the United States contends that the phrase “potential risk” is just “subtle redundancy” used to clarify that the Court is concerned with the “possibility of injury, not the certainty of it.” The United States supports its argument by referencing numerous federal statutes and over two hundred state statutes that use similar language to that of the residual clause when defining a level of risk.
COURT INTERPRETATIONS OF THE RESIDUAL CLAUSE
Johnson argues that because the Supreme Court and lower courts have struggled with interpreting the residual clause of the ACCA, this proves the residual clause is unconstitutionally vague. Johnson supports his argument by referencing five separate cases in which the Court has grappled with interpreting the residual clause. Johnson contends that the Court reached different conclusions in each of the five cases, resulting in five different standards of review. Johnson argues that in each decision, intuition primarily guided the Court, which proves that the residual clause does not provide an appropriate level of guidance. Additionally, Johnson notes that in James v. United States the Court found that an offense falls within the residual clause if it is “as risky as the closest analog.” Johnson contends that this creates an interpretation issue, however, because the closest analog is not always “readily apparent.” Therefore, Johnson argues that the inability of the Court to provide a clear standard for applying the residual clause supports that it is unconstitutional. Furthermore, Johnson asserts that the inconsistency among the lower courts proves that the residual clause is unconstitutionally vague. Johnson supports his argument by pointing out the high number of circuit splits. Johnson also notes that there are intra-court disagreements with how the residual clause is interpreted.
In opposition, the United States argues that the Supreme Court and lower courts have been able to successfully interpret the residual clause, proving that it is clear and constitutional. The United States contends that the most recent Supreme Court case, Sykes v. United States, adequately clarified that “a court should make a commonsense judgment about the risk posed by the offense in the ordinary case.” The United States argues that the Court is well equipped with the experience, precedent, common sense, and empirical data needed to effectively analyze the risk of an offense in the “ordinary case.” In addition, the United States maintains that although there are some cases where the Court may have difficulty analyzing the risk of a crime, this does not mean the residual clause is unconstitutional. Lastly, the United States explains that by focusing on only those cases that make it to the Supreme Court, Johnson is analyzing the difficulties in interpreting the residual clause from a skewed perspective.
THE RESIDUAL CLAUSE AND DUE PROCESS
Johnson argues that the residual clause is so vague that it violates the “vagueness doctrine” and, in turn, due process. First, Johnson argues that because the residual clause is unclear, it prevents people from being informed of what conduct is prohibited. Johnson contends that this is unconstitutional because the due process requires fair notice. Second, Johnson believes that the vagueness of the residual clause leads to arbitrary and subjective interpretations by judges, which raises both due process and Sixth Amendment concerns. Finally, Johnson contends that the ambiguity of the residual clause leads to separation of powers issues. Johnson argues that it should be Congress’s role to specify and fix the language of the residual clause. To keep the clause’s language as is, Johnson argues, would force the Court to overstep its “bounds of judicial interpretation.”
The United States counters that the residual clause does not raise due process concerns. The United States asserts that the fair notice principle should not apply in this instance since there is “a higher standard for sentencing provisions”, and the ACCA relates to sentencing. The United States contends that notice should be given to assist the innocent and ordinary citizens—not to assist criminals in choosing to commit an offense that has lesser consequences. Finally, the United States maintains that because the ACCA presents a question of law, arbitrary enforcement of the residual clause is impossible since the district court’s decision is reviewed de novo by an appellate court, and even the Supreme Court.
Upon rehearing this case, the Supreme Court will have the opportunity to consider if the residual clause contained in the Armed Career Criminal Act (“ACCA”) suffers from unconstitutional vagueness. Johnson argues that the residual clause is unconstitutionally vague and undermines the Due Process Clause of the Constitution. Nevertheless, the United States claims that the residual clause is not unconstitutionally vague and does not violate due process. This case may implicate the ability of people to conform their conduct to the law, the uniformity of sentencing across the nation, and the interplay of the legislative and judiciary branches.
ADEQUATE NOTICE AND UNIFORMITY
Supporting Johnson, amici the National Association of Criminal Defense Lawyers (“NACDL”) argues that the residual clause of the ACCA is unconstitutionally vague regarding all of its potential applications, including inchoate offenses, battery against a law enforcement officer, and statutory rape. The NACDL explains that “[n]umerous circuit splits persist, leaving the courts, litigants, and the public unable to surmise which predicate offenses are included within the residual clause or why.” More broadly, the NACDL asserts that the residual clause fails to adequately inform a defendant of the riskiness of his or her conduct. As a consequence, a defendant, the NACDL claims, is left with uncertainty about the sentence or consequences he or she could face because of the contemplated criminal conduct.
The United States, in opposition, urges a “categorical approach” when determining the applicability of the residual clause to cases like Johnson’s. The categorical approach, the United States argues, makes the ACCA’s application “more predictable and uniform than . . . statute[s] that impose criminal liability or sentencing consequences for risky conduct” on a case-by-case basis. The categorical approach, according to the United States, contemplates whether a defendant’s specific behavior falls within the general category of crimes contemplated by the ACCA. Because review of whether an offense falls under the residual clause is left to appellate courts, the United States argues that such review allows for predictable and consistent application to offenders. The United States further explains that such appellate determinations put defendants on notice regarding if their actions in one state may constitute a predicate offenses in another state.
The ROLE OF THE JUDICIARY
The NACDL, in support of Johnson, contends that inquiries into a statute’s vagueness are necessary for “preserving the separate roles of the legislature and the judiciary.” Vague statutes and laws, the NACDL argues, undermine the relationship between the government and its people when the legislatures require judges—rather than elected officials—to determine the conduct that triggers severe penalties under vague statutes. Ideally, the NACDL explains, the people give elected officials—who are “responsive to the voice of the people”—this power to decide what conduct gives rise to severe penalties.
On the other hand, the United States contends that judges are in the best position to make determinations about severity of risk and the conduct applicable to particular convictions. The United States argues that under a categorical standard, judges are equipped to make well-reasoned decisions regarding whether the offense ordinarily causes a serious threat of injury as well as a “common sense judgment” regarding the riskiness of the particular conduct in question. The United States points out that in making both decisions, judges do not make arbitrary decisions; rather, judges may rely on legislative judgments, empirical data, and case law in addition to their own common sense judgment.
This case will decide whether the residual clause of the ACCA is unconstitutionally vague. Johnson argues that because the text of the clause is ambiguous and the clause has led to interpretive disparities among courts, it is unconstitutional and violates due process. Nevertheless, the United States counters that even if the language is vague, the standard to find it unconstitutional is high and the residual clause does not meet this threshold. In support of Johnson, the NACDL argues that if the Court finds the clause constitutional, it will continue to be particularly difficult to apply the ACCA to certain offenses such as inchoate offenses, battery against an officer, and statutory rape. The United States, however, argues that finding the clause unconstitutional and failing to use a categorical approach would lead to a general lack of uniformity amongst the courts. The outcome of this case may implicate the uniformity of sentencing across different states, the interplay of the legislative and judiciary branches, and the ability of people to know the consequences of certain types of unlawful conduct.
Lyle Denniston: Court Orders New Look at Armed Criminal Law, SCOTUSblog (Jan. 9, 2015).