The Armed Career Criminal Act of 19841 (ACCA) imposes a mandatory minimum fifteen-year prison sentence on predicate felons who have three prior convictions for violent felonies or serious drug offenses upon their conviction for a firearm offense.2 Burglary, arson, extortion, and crimes involving the use of explosives are all defined as violent felonies under ACCA, as are crimes that fall into the statute’s residual clause: crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”3 Last Term, in Johnson v. United States,4 the Supreme Court struck down ACCA’s residual clause because it was unconstitutionally vague.5 To do so, the Court had to eschew a classic canon of construction, overturn its precedent, and broaden the vagueness doctrine. Johnson thus sent an important cautionary message to Congress and the courts: when a poorly drafted statute imperils defendants’ liberty and due process rights, the Court will not hesitate to strike it down, even if it must go to great lengths to do so.
Samuel James Johnson was a predicate felon upon whom ACCA’s mandatory minimum was imposed after his 2012 firearm conviction.6 Johnson had a lengthy criminal record and in 2010 came under investigation for his involvement with the National Socialist Movement, “a white-supremacist organization suspected of plotting acts of terrorism.”7 During the investigation, Johnson “disclosed to undercover FBI agents that he manufactured napalm, silencers, and other explosives” and that he owned a .22 caliber semiautomatic assault rifle and a .45 caliber semiautomatic handgun.8 He also showed agents his AK-47 rifle and a “cache of ammunition containing approximately 1,100 rounds.”9 On the basis of these revelations and admissions, Johnson was arrested in the spring of 2012.10
In April 2012, Johnson was charged by a grand jury in a six-count indictment for being an armed career criminal in possession of a firearm and a felon in possession of ammunition.11 Two months later,12 he pled guilty to a single count of being a convicted felon in possession of an AK-47 rifle.13 Johnson’s presentence investigation report (PSR) found that three of his predicate crimes were violent felonies,14 which qualified him for ACCA’s mandatory minimum sentence. The first was a 1999 attempted simple robbery conviction; the second was a 2007 simple robbery conviction; and the third, also from 2007, was a conviction for possessing a short-barreled shotgun.15 In September 2012,16 concurring with the PSR’s conclusion that these crimes constituted violent felonies, the United States District Court for the District of Minnesota deemed Johnson an armed career criminal and sentenced him to 180 months’ imprisonment with five years of supervised release.17
The Eighth Circuit affirmed.18 Johnson made two arguments on appeal: first, that his attempted robbery and shotgun possession predicate crimes were not violent felonies justifying an ACCA sentencing enhancement; and second, that ACCA was unconstitutionally vague.19 The Eighth Circuit found that its precedent dispatched Johnson’s first claim: in United States v. Lillard,20 the court had found short-barreled shotgun possession to be a violent felony,21 and in United States v. Sawyer,22 it had found attempted robbery to be the same.23 Furthermore, the court held, ACCA’s residual clause was not void for vagueness; bound by precedent affirming ACCA’s constitutionality, the court quickly dismissed Johnson’s second challenge and affirmed the district court’s ACCA-enhanced sentence.24
The Supreme Court reversed and remanded the case for further proceedings.25 Writing for the Court, Justice Scalia declared that ACCA’s residual clause violated the Due Process Clause of the Fifth Amendment because it was void for vagueness.26 The Court’s vagueness doctrine, he began, had long stood to protect defendants from any “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.”27 The doctrine’s protections extend to criminal sentencing statutes.28
Two features of ACCA’s residual clause, he continued, combined to make it the kind of standardless sentencing statute that the vagueness doctrine prohibits.29 Both derived from the “categorical approach” to ACCA-enhanced sentencing required under Taylor v. United States.30 Courts using the categorical approach may only “assess whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.’”31 It forces courts to “picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.”32 Thus, the first problem, Justice Scalia explained, was that the residual clause “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.”33 Without guidance regarding proper “ordinary case” determination, individual judges were left to speculate on what conduct most typically gives rise to a particular conviction.34
This problem was compounded by a second: not only did sentencing judges have to guess what constituted a typical crime, but they also had to guess how much risk that ordinary case had to pose in order to be a violent felony.35 The statute directed a sentencing judge to determine whether a given crime’s “typical” case presented a risk of serious injury comparable to that posed by four crimes — burglary, arson, extortion, and crimes involving the use of explosives — that were “far from clear in respect to the degree of risk each poses.”36 In so “combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produce[d] more unpredictability and arbitrariness than the Due Process Clause tolerates.”37 This fact, Justice Scalia continued, was confirmed by the inability of the Supreme Court and circuit courts to agree “about the nature of the inquiry one [was] supposed to conduct and the kinds of factors one [was] supposed to consider.”38 The vagueness evinced by this disagreement was not disproven by any judicial agreement on a core subset of qualifying crimes, Justice Scalia concluded, rejecting the arguments of the Government and dissent.39
Finally, Justice Scalia addressed stare decisis.40 Acknowledging that the Court had previously rejected vagueness challenges to ACCA’s residual clause, Justice Scalia noted that it had done so only in passing, “without full briefing or argument.”41 Even if these rejections amounted to holdings, stare decisis would still not bar the Court from revisiting its earlier ACCA decisions, as its experience had revealed them to be unworkable.42 Particularly with regard to vagueness challenges, Justice Scalia said, only experience could reveal a statute to be unconstitutionally impossible to apply evenhandedly.43
Justice Thomas concurred in the judgment.44 Declining to find ACCA void for vagueness, he utilized “conventional principles of interpretation and [the Court’s] precedents” to find that a conviction for the possession of a short-barreled shotgun was not a violent felony under ACCA’s residual clause.45 Possession of a short-barreled shotgun presented “simply too remote . . . a risk of physical injury to fall within the residual clause.”46 The case, Justice Thomas contended, should have ended there: the residual clause allowed “any fool [to] know that a particular category of conduct would be within the reach of the statute,” and was thus “not unconstitutional on its face.”47 For Justice Thomas, the majority’s decision to take the case further than necessary raised concerns about the vagueness doctrine and its troubling similarities with substantive due process.48
Justice Alito dissented.49 The majority, he said, in its haste to be rid of the residual clause, had carelessly discarded both stare decisis and the canons of construction.50 Beginning with the former, Justice Alito noted that four majorities of the Court had found ACCA’s residual clause capable of interpretation, and that he saw no reason to overrule this clear precedent.51
Justice Alito next turned to the vagueness doctrine.52 The threshold for vagueness, he stated, was higher than the majority claimed.53 Statutes are presumptively valid and must be upheld where they articulate an “ascertainable standard.”54 ACCA’s residual clause, with its “unquestionably . . . ascertainable standard,” could not thus be vague.55 Its language mirrored that of many similar state and federal standards, which all would be struck down in an interpretive “nuclear explosion” if ACCA were to be invalidated.56 Justice Alito disagreed that these other standards could be distinguished because ACCA’s categorical approach required courts to identify a crime’s most typical case.57 He argued that, instead, the Court-created categorical approach should be discarded to save the statute from unconstitutionality, as the canon of constitutional avoidance required.58
Justice Alito also rejected both the Taylor Court’s justifications for the categorical approach and the Court’s dismissal of the rule of Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,59 which deemed unconstitutional only a law “impermissibly vague in all of its applications.”60 Finally, having declined to invalidate ACCA’s residual clause, Justice Alito closed his dissent by determining that Johnson’s conviction for possession of a short-barreled shotgun was a qualifying violent felony, whether the Court considered it under the categorical approach or otherwise.61
Justice Scalia cabined Johnson’s holding to the language and structure of ACCA’s residual clause, noting that its vagueness was the unique result of a sort of speculation-layering.62 He apparently shared Justice Alito’s fear that an overbroad opinion would incite a “nuclear explosion,” invalidating “scores of federal and state laws,”63 and “[t]ransforming vagueness doctrine.”64 In reality, the impact of Johnson is likely to be broader than the majority admits and narrower than the dissent fears. The doctrinal disputes that occupied the Justices in Johnson are significant in themselves; Justice Alito’s advocacy for the canon of constitutional avoidance and Justice Thomas’s critique of substantive due process implicate broader debates regarding theories of constitutional and statutory interpretation.
As important, however, is the signaling function that Johnson serves. With Johnson, a six-Justice majority evinced a new willingness to engage with questions of statutory clarity in the criminal context.65 Broadening the vagueness doctrine and declining to apply a traditional canon of statutory interpretation, the Johnson majority demonstrated the lengths to which it would go to strike down a criminal statute that offered no clear congressional command. Despite Justice Scalia’s best efforts then, Johnson is likely to have an impact beyond ACCA’s bounds: It urges congressional caution and precision, particularly where, as was the case with ACCA, a statute is shaped by political compromise. Johnson also encourages the judiciary to be more permissive in adjudicating vagueness claims.
ACCA was born in the 1980s, an era in which Congress famously heightened criminal penalties. The proposed bill was originally termed the Career Criminal Life Sentence Act of 1981, and would have made both robbery and burglary federal crimes, punishable by life imprisonment, when either was committed by a felon with two prior convictions for robbery or burglary.66 The House and Senate passed a revised version of this bill, which reduced the sentence imposed to a mandatory minimum of fifteen years.67 That bill was vetoed by President Reagan, however, because its extension of federal jurisdiction to the state crimes of robbery and burglary raised federalism concerns.68 In subsequent hearings held as the bill was being revised, law enforcement agencies from the Department of Justice to the National District Attorneys Association echoed these concerns.69 Ultimately, the federalism problem was addressed with a substantial amendment: the bill was modified to impose its mandatory sentencing enhancement when offenders with three prior convictions for robbery or burglary violated a federal firearm statute.70 As such, the bill was enacted into law as the Armed Career Criminal Act (ACCA).71
Thus, ACCA’s limits grew out of its political context: the bill was tied to firearm crime and limited to defendants with predicate robbery and burglary convictions to minimize federal encroachment on state law enforcement.72 Originally, ACCA had been inspired by a growing concern that a small number of criminals were responsible for the majority of street crimes.73 The bill’s sponsors and advocates hoped that targeting these criminals, en masse, with sentencing enhancements would incapacitate and deter them, ultimately decreasing street crime rates.74 The incapacitation rationale was simple: the more offenders there were in prison, the fewer there would be on the streets to reoffend. But Congress needed to empower law enforcement to deter repeat offenders “without permitting a radical expansion of Federal jurisdiction over common law crimes and without creating a need for a local veto over the exercise of Federal jurisdiction.”75 ACCA’s application was therefore limited to permit its passage.
Soon though, ACCA’s scope was broadened. In 1986, ACCA was revised to include the residual clause, with its enumerated crimes and “otherwise” language.76 “This allowed for incapacitating a wider variety of career criminals than just robbers and burglars,”77 in keeping with the original intentions of ACCA’s sponsors.
But the introduction of this broad clause also incited a tidal wave of litigation that brought ACCA before the Court in four cases in as many years, as the judiciary struggled to fill in the gap created by Congress.78 In all of these cases, members of the Court attempted to make sense of the residual clause by looking to or imagining Congress’s purpose in passing ACCA. In Begay v. United States,79 for example, Justice Breyer’s majority opinion speculated about the purpose behind Congress’s inclusion of the enumerated crimes: the crimes were listed to clarify that “the statute cover[ed] only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’”80 The enumerated crimes limit ACCA’s reach to crimes similar both in kind and in degree of risk posed to the examples themselves.81 This approach made sense given what the Court identified as the underlying purpose of the Act: ACCA was enacted in an attempt to reduce the “special danger” that arises when a violent felon possesses a gun.82 Even the Court’s best efforts to discern a congressional purpose from the structure of ACCA’s residual clause required stretching the statute’s language and ended in disagreement.83
Johnson was then simply the latest in a series of cases in which the Court wrestled with the residual clause. Johnson was not facially a case about the judicial role; it was rather a case concerning statutory interpretation, stare decisis, and the vagueness doctrine. But underlying the debate of these technical issues was a more fundamental question: when a flawed statute is sending offenders to prison for a mandatory minimum of fifteen years, what are judges to do? In Johnson, the Justices offered their answers. Justice Alito’s dissent and Justice Thomas’s concurrence highlighted the conservative options available: when faced with the task of interpreting the residual clause, they suggested that a judge utilize the traditional tools of statutory interpretation, within the boundaries of stare decisis.84 The majority opinion, however, offered an alternative: Justice Scalia declined to apply a canon of construction, and instead affirmed a judicially created interpretive rule.85 He similarly declined to adhere to precedent because the Court’s lived “experience” had shown it to be misguided.86 Finally, he significantly revived and broadened the vagueness doctrine, indicating that where a statute was mostly vague, but perhaps clearly covered a core of conduct, it could still be violative of a defendant’s due process rights and therefore void.87
These were dramatic steps, and Justice Scalia took care to cabin the Johnson opinion’s application to the particular provision before the Court. The opinion he authored was narrow and technical: Justice Scalia carefully deconstructed the residual clause to identify the layered ambiguity that made it both unique and unconstitutionally vague.88 He sidestepped stare decisis by characterizing purportedly problematic precedent as dicta.89 This narrowness suggests that Justice Alito’s feared “nuclear explosion” is unlikely to come to pass.
Yet Johnson’s impact may well be broader than the majority admits.90 Sentencing statutes are the province of Congress, and the Court has shown that it is willing to enforce even the most draconian, within the bounds of the Eighth Amendment, provided that Congress clearly requests that it do so.91 Yet Justice Scalia’s opinion demonstrates the great lengths to which the Court is prepared to go when a poorly drafted statute imperils defendants’ liberty and due process rights. The Johnson majority’s willingness to find the residual provision unconstitutionally vague — despite the availability of the constitutional avoidance canon and the presence of precedent, and in light of Justice Scalia’s earlier express messages to Congress92 — will put pressure on Congress to be more precise in the future. This pressure will be heightened if Johnson also encourages judges to hear, and litigants to raise, constitutional challenges to vague criminal statutes.