Johnson v. United States is the latest in a long string of Supreme Court cases about how to interpret the Armed Career Criminal Act, which defines a violent felony as, inter alia, “any crime punishable by imprisonment for a term exceeding one year … that … is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” It was argued last fall and didn’t seem like it would be much more unusual than most cases about the ACCA.
Today after its first conference of 2015, the Supreme Court ordered the parties in Johnson to brief and reargue the following question: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague.” Here’s Lyle Denniston’s analysis.
Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right.
For a taste of the arguments that are likely to come, here is Justice Scalia’s 2011 dissent in Sykes v. United States, where he made the void for vagueness argument:
When I dissented from the Court’s judgment in James, I said that the residual clause’s “shoddy draftsmanship” put courts to a difficult choice:
“They can (1) apply the ACCA enhancement to virtually all predicate offenses, … ; (2) apply it case by case in its pristine abstraction, finding it applicable whenever the particular sentencing judge (or the particular reviewing panel) believes there is a ‘serious potential risk of physical injury to another’ (whatever that means); (3) try to figure out a coherent way of interpreting the statute so that it applies in a relatively predictable and administrable fashion to a smaller subset of crimes; or (4) recognize the statute for the drafting failure it is and hold it void for vagueness … .” 550 U. S., at 229–230.
My dissent “tried to implement,” id. , at 230, the third option; and the Court, I believed, had chosen the second. “Today’s opinion,” I wrote, “permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.” Id., at 230–231. My assessment has not been changed by the Court’s later decisions in the ACCA “series.” Today’s opinion, which adds to the “closest analog” test (James) the “purposeful, violent, and aggressive” test (Begay) , and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute’s application clear and predictable. And all of them together—or even the risky-as-the-least-risky test alone, I am now convinced—never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.
That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach, United States v. Batchelder , 442 U. S. 114, 123 (1979) (internal quotation marks omitted), and that permits, indeed invites, arbitrary enforcement, see Kolender , 461 U. S., at 357. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.
Jeff Wall, a Supreme Court litigator (formerly in the Solicitor General’s office) adds on Twitter: “Prosecutors may be sad to lose the residual clause, but the SG’s Office won’t. It has been a constant source of struggle.”