JOHNSON v.
UNITED STATES
Don’t Go Away
BY KATHERINE MENENDEZ
O
n June 26, 2015, the penultimate day of the
Supreme Court’s 2014 term, regular citizens and
Court watchers alike heard the news of the muchanticipated ruling in Obergefell v. Hodges, the landmark
decision that struck down as unconstitutional legal prohibitions on same-sex marriage. (135 S. Ct. 2584 (2015).)
But before the echoes of the opinion announced from the
bench had faded in the Supreme Court chamber, another
decision was issued with much less fanfare, but with a considerable impact of its own.
KATHERINE MENENDEZ is an assistant federal defender and
the chief of training for the District of Minnesota and was
recently appointed Federal Magistrate Judge for the District
of Minnesota. She and Doug Olson represented Samuel
Johnson before the United States Supreme Court. Twice.
12
In Johnson v. United States, the Supreme Court struck
down a portion of a federal criminal sentencing provision,
the Armed Career Criminal Act (ACCA), finding the text
of the statute to be so vague that its application violated
the due process clause of the United States Constitution.
(135 S. Ct. 2551 (2015).) In so ruling, the Court at last put
to rest what might be the most contentious 14 words in a
criminal statute in recent years. Though the nation’s eyes
remained on Obergefell, the Johnson decision is a landmark
in its own way, and was a cause for celebration among
inmates in federal prison, federal public defenders, and
criminal law practitioners across the country.
The Johnson decision has implications beyond just the
ACCA, and indeed beyond the arena of criminal law.
Language almost identical to the clause struck down by
the Johnson Court appears in the sentencing guidelines,
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and very similar language appears in several other federal
criminal statutes; each of those provisions are already
being revised or are vulnerable to their own challenges
for vagueness.
More generally, in Johnson the Court arguably breathed
new life into the “void for vagueness” doctrine, affecting
criminal and civil statutes alike. And Johnson, when read
together with another case from the same term, signals a
new willingness on the part of the Court to consider facial
challenges to statutes, challenges that in recent decades the
Court has deplored in word if not in deed.
The Armed Career Criminal Act
The ACCA is one of the most onerous mandatory sentencing provisions found in the federal criminal code.
Ordinarily the crime of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g), is punished
by zero to 10 years in prison, with the precise sentence
within that range determined by the applicable sentencing
guidelines and a variety of other sentencing considerations.
However, if a defendant qualifies for enhanced penalties
under the ACCA by virtue of his or her criminal history,
the applicable sentence shifts to being no less than 15 years
in federal prison, with a maximum possible penalty of life.
(18 U.S.C. § 924(e).) Originally adopted during the 1980s,
at a time of growing reliance on mandatory minimums and
significant prison sentences, the ACCA has been employed
with increasing frequency in the years since its adoption
to mandate lengthy terms of incarceration for defendants
perceived as violent who later unlawfully possess firearms
despite their prohibited status.
On the surface, the idea of the ACCA is a good one: add
significant penalties when defendants with serious criminal records possess weapons. However, in application
the ACCA is often overinclusive. The ACCA is triggered
by the presence of three or more qualifying felonies in a
defendant’s criminal history: because there is no expiration date for offenses that can trigger the enhancement,
even decades-old convictions can lead to the enhancement.
Certain juvenile adjudications can qualify as well. Also,
although the prior offenses must have been felonies, punishable by more than a year in prison, there is no requirement
that the defendant actually served more than a year in
prison for the past crimes, or even that he or she was sent to
prison at all. Therefore, even prior convictions from years
before that were not considered serious enough by a judge
at the time to lead to a significant sentence can later trigger
application of the 15-year penalty minimum.
Another aspect of the ACCA that makes it so onerous
is that it is a mandatory enhancement. If a defendant’s
criminal history contains the required predicate offenses,
a district court has no choice but to send him or her to
prison for 15 years; even when a judge believes that such a
result is unjust or excessive in a particular case, the judge’s
hands are tied by the statute.
Two different types of crimes can count as predicate
under the ACCA: serious drug offenses (see 18 U.S.C.
CRIMINAL JUSTICE n Spring 2016
§ 924(e)(2)(A)) and “violent felonies.” It is a subpart of
the violent felony definition that the Supreme Court grappled with in Johnson.
The Residual Clause: 14 Inscrutable Words
In order for a prior conviction to qualify as a violent
felony under the statute, it must be a felony 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, extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” (18 U.S.C. § 924(e)(2)
(B) (emphasis added).) The last part of this definition was
called the “residual clause,” and more than any other part
of this statute, it caused widespread consternation among
lower courts and the Supreme Court alike.
Prior to granting review in Johnson in 2014, the Supreme
Court had already attempted to interpret the residual clause
four different times in seven years. (See James v. United
States, 550 U.S. 192 (2007); Begay v. United States, 553 U.S.
137 (2008); Chambers v. United States, 555 U.S. 122 (2009);
Sykes v. United States, 131 S. Ct. 2267 (2011).) In each case,
the Court agreed to consider whether a particular predicate offense qualified as a violent felony under the clause,
and in each case the Court had to create a somewhat different test to assess the specific offense before it. In James,
for instance, the Court considered whether attempted burglary should count as a violent felony and decided that
because it was similar in kind and degree of risk to burglary, which was one of the specifically enumerated offenses
set out in the statute, it must count. In Begay, the Court
held that in order to satisfy the residual clause, a prior
offense had to be similar in kind and degree of risk to the
enumerated offenses, all of which involved “purposeful,
violent and aggressive” conduct. Under that analysis, the
Court found that felony drunken driving did not qualify.
In Chambers, the Court applied a similar framework and
also considered crime statistics in deciding that failure to
return from a furlough was not a violent felony. In Sykes,
the last decision prior to Johnson, the Court determined
that felony fleeing the police did qualify because of the
danger such flight created.
In each case, the Court granted certiorari because the
lower courts faced serious disagreements about whether the
particular offenses counted under the residual clause. Also,
in each case the decision to grant review implicitly conceded that the tests and analyses of the previous decisions
were not up to the task of categorizing the new predicate
offenses as violent or not.
In all cases, members of the Court expressed frustration with the utter lack of clarity found in the statutory
language of the ACCA. Justice Scalia led the charge,
twice dissenting from the majority opinion to argue that
the residual clause is unconstitutionally vague. In James,
Justice Scalia (joined by Justices Stevens and Ginsburg)
noted that “[i]mprecision and indeterminacy are particularly inappropriate in the application of a criminal statute.
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13
Years of prison hinge on the scope of ACCA’s residual
provision, yet its boundaries are ill defined.” (James, 550
U.S. at 216 (Scalia, J., dissenting).) In Sykes, Justice Scalia dissented again, offering an even more comprehensive
analysis of the residual clause’s vagueness. Acknowledging that the Court had, in the past, upheld other vague
statues against constitutional challenges, he said “[w]hat
sets ACCA apart from those statutes—and what confirms
its incurable vagueness—is our repeated inability to craft
a principled test out of the statutory text.” (Sykes, 131 S.
Ct. at 2887–88 (Scalia, J., dissenting).) In each instance, the
majority rejected Justice Scalia’s argument, stating in James
that the residual clause is not “so indefinite as to prevent
an ordinary person from understanding what conduct it
prohibits.” (James, 550 U.S. at 210 n.6 (majority opinion).)
Justice Scalia was not alone in expressing his dissatisfaction with the opaque language of the provision. In
simple robbery, attempted simple robbery, and mere possession of a short-barreled shotgun. Following his guilty plea,
the district court sentenced him to 15 years in prison, noting that the sentence was excessive but that the judge had
no choice under the mandatory provisions of the ACCA.
Although Johnson appealed his sentence and his treatment as an armed career criminal to the Eighth Circuit,
its precedent foreclosed any serious consideration of Johnson’s arguments, and his sentence was quickly affirmed.
(United States v. Johnson, 526 F. App’x 708 (8th Cir. 2013)
(unpublished).)
Johnson sought review from the Supreme Court on the
question of whether his prior conviction for possession of a
short-barreled shotgun should count as a predicate offense
under the ACCA. Because possession of a weapon, even
a dangerous one, is neither one of the four enumerated
offenses nor a crime that contains an element of force,
The very frequency of the Court’s struggles with the
residual clause is a testament to its frustration with the
provision’s resistance to consistent interpretation.
a dissent in Begay and a concurrence in Chambers, Justice Alito, joined by others, expressed frustration with the
poorly drafted clause, noting that it “calls out for legislative
clarification.” (Begay, 553 U.S. at 155 (Alito, J., dissenting);
see Chambers, 555 U.S. at 131–34 (Alito, J., concurring).)
Indeed the very frequency of the Court’s struggles with
the residual clause is a testament to its frustration with the
provision’s resistance to consistent interpretation. In his
Sykes dissent, Justice Scalia joked that “[w]e try to include
an ACCA residual-clause case in about every second or
third volume of the United States Reports.” (Sykes, 131
S. Ct. at 2284 (Scalia, J., dissenting).) For every certiorari
petition it granted regarding the clause, the Court declined
to consider hundreds of others, even rejecting petitions
identifying clear and intractable splits among lower courts
about the violent felony status of various predicate offenses.
(See, e.g., Derby v. United States, 131 S. Ct. 2858 (2011)
(Scalia, J., dissenting from denial of certiorari) (criticizing
the Court’s decision not to review four different residual
clause cases, and worrying that lower courts will become so
frustrated with the residual clause and the Court’s efforts to
interpret it that they will “throw the opinions into the air
in frustration, and give free rein to their own feelings as to
what offenses should be considered crimes of violence”).)
It is against this backdrop that Johnson arose.
Johnson v. United States: Take One
Samuel Johnson was charged in federal court in Minnesota
with being a felon in possession of firearms. Although he
had never before been sentenced to prison, he had been
convicted of three prior crimes that counted as “violent
felonies” under then existing Eighth Circuit precedent:
14
the issue was whether such a crime satisfied the residual
clause. This question had given rise to a clear split in the
circuits: although the Eighth Circuit had consistently held
that the predicate offense qualified as a violent felony,
several other circuits disagreed. The Seventh Circuit had
published a detailed opinion just a year before, concluding
that mere possession of a weapon, even a dangerous one
like a short-barreled shotgun, does not present the degree
of risk required by the statute. (United States v. Miller,
721 F.3d 435 (7th Cir. 2013).) In April 2014, the Supreme
Court granted certiorari in Johnson v. United States. (134
S. Ct. 1871 (2014).)
In his briefing, Johnson urged the Court to conclude
that mere possession of a short-barreled shotgun
simply did not satisfy the residual clause under any
of the previous tests the Court had articulated. He
emphasized that merely possessing something, even
something dangerous, is different indeed from the active
violence or risky behavior required by other parts of the
violent felony definition. He also urged that it is legal
in many states, though admittedly not in Minnesota,
to possess a short-barreled shotgun, and it is even legal
on the federal level if the owner registers it and pays a
special tax; it would be unusual for an act that is not
even uniformly unlawful to be such a serious violent
predicate that it counts as a “strike” for an onerous
sentencing enhancement. Johnson emphasized that
possessing a short-barreled shotgun is not similar to any
of the enumerated offenses, nor to the prior instances in
which the Supreme Court had found a predicate offense
to satisfy the residual clause, in either its riskiness or
its character. Finally, he argued that the rule of lenity
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supported a finding in favor of Johnson given the
ambiguity in the statutory language.
The government argued that possession of a shortbarreled shotgun satisfies the residual clause because the
offense is most often committed by dangerous criminals
for the purpose of using the weapon during serious crimes.
It urged that short-barreled shotguns are uniquely violent
weapons strongly associated with criminal conduct, and it
emphasized that such weapons have been used in serious
and high-profile crimes. The government did not discuss
Johnson’s suggestion that the rule of lenity precluded application of the residual clause in his case.
The case was argued on November 5, 2014.
Take Two
On January 9, 2015, the Court issued an unexpected order
asking the parties to brief a second 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.
The Court ordered full-length merits briefing on the issue,
and specified that it would be heard in the April session for
oral argument. Johnson had not sought certiorari the first
time around on the issue of unconstitutional vagueness,
instead choosing to focus the Court’s attention on what
appeared to be a very strong claim on the merits. However, countless other defendants around the country had
been urging the Court to consider vagueness since Justice
Scalia’s first dissent in James. At last, the Court was going
to receive substantive briefing and argument on the claim
that the residual clause was simply too unclear to survive
continuing scrutiny.
In the second round of briefing, Johnson traced the
history of the Court’s efforts to make sense of the residual
clause’s poorly drafted 14 words. He pointed out that, in
each of the Court’s efforts to interpret the clause, the test
created or analytical framework adopted led to an answer—
though often a contentious one—regarding the particular
predicate offense then before the Court, but was not
useful in analyzing unrelated prior offenses. Johnson also
emphasized that, despite several Supreme Court justices
repeatedly expressing frustration with the text of the clause,
even explicitly urging legislative action, Congress had failed
to even attempt to amend the statute and clarify the scope
of the violent felony definition. In addition, Johnson
highlighted the many struggles on the part of lower courts
to make sense of the clause and of the Supreme Court’s
interpretive efforts, struggles that gave rise to numerous
circuit splits regarding both individual predicate offenses
and the correct legal analysis. Finally, although Johnson
noted that the Court traditionally hesitates to embrace
facial challenges to statutes, preferring “as applied”
challenges, a facial remedy declaring the residual clause
unconstitutional was justified by the Court’s repeated
unsuccessful efforts to bring clarity to the statute’s scope.
The government urged the Court to conclude that
vagueness doctrine rarely if ever applied in the context
of sentencing statutes, where the illegality of the underlying criminal conduct was not in question. The traditional
CRIMINAL JUSTICE n Spring 2016
purposes of a prohibition on vague statutes—lack of fair
notice to citizens about what conduct violates the law and
the risk of arbitrary enforcement—do not apply with equal
force to provisions that merely affect penalty instead of
criminality. The government also warned against a facial
challenge like the one at issue, and argued that a statute
could only be declared vague if it is shown to be vague in
every application. Moreover, the government pointed the
Court to hundreds of statutes that use language similar in
varying degrees to the language of the residual clause, and
suggested that such a frequently used statutory structure
could not be rejected as vague. The government disagreed
that the lower courts were in turmoil over how to properly and consistently apply the clause, and argued that the
Supreme Court’s previous tests provided sufficient guidance
to address most predicate offenses. Finally, the government
argued that if the Court agreed that there was any ambiguity, it could address that by application of the rule of
lenity rather than by facially rejecting the entire provision.
The Court heard argument for a second time on
April 20, 2015.
Johnson v. United States: An 8–1 Decision
On June 25, 2015, the Supreme Court chamber was full,
packed with people waiting for Obergefell. At just after
10:00 a.m. the wait was over, and the Court announced
the decision, with Chief Justice Roberts reading from his
dissent as well. When the Obergefell announcement was
done, and many in the courtroom were ready to head outside to celebrate, Justice Scalia joked to the crowd “don’t go
away,” as he announced that the Court had also decided the
Johnson case. While in no way the landmark that Obergefell
was, the Johnson opinion had also been eagerly and nervously awaited for weeks, not only by Sam Johnson and
his attorneys, but by thousands of attorneys and their clients around the country.
The Court ruled in favor of Samuel Johnson in an 8–1
decision, with six of the justices also agreeing that the residual clause was unconstitutionally vague. Not surprisingly,
Justice Scalia authored the opinion: “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.” (Johnson, 135 S. Ct. at 2551, 2557.) The Court noted
that two features of the residual clause made it vague: first,
it was unclear how to estimate the risk posed by a particular predicate offense; and second, it was unclear how much
risk was actually enough to fall within the clause’s coverage. “By 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 produces more unpredictability
and arbitrariness than the Due Process Clause tolerates.”
(Id. at 2558.) Justice Scalia emphasized the numerous splits
among the lower federal courts, noting that not only do the
courts disagree about whether particular predicate offenses
qualify, but they also have “pervasive disagreement about
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15
the nature of the inquiry one is supposed to conduct
and the kinds of factors one is supposed to consider.”
(Id. at 2560.)
The Court noted that vagueness doctrine applies to sentencing statutes as well as statutes that define crimes (id. at
2557), and the Court flatly rejected the suggestion by the
government and the dissent that in order to succeed, Johnson had to demonstrate that the residual clause is vague in
all its applications. “In all events, although statements in
some of our opinions could be read to suggest otherwise,
our holdings squarely contradict the theory that a vague
provision is constitutional merely because there is some
conduct that clearly falls within the provision’s grasp.” (Id.
at 2560–61.)
Finally, the Court held that stare decisis did not preclude
it from declaring the residual clause to be unconstitutionally vague. The Court noted that “[t]he doctrine of stare
decisis allows us to revisit an earlier decision where experience with its application reveals that it is unworkable,”
and explained that this exception to the rule is even more
relevant in the vagueness arena where the error of an earlier rejection of a vagueness claim becomes clear when
later decisions remain unable to constructively interpret
the provision in question. (Id. at 2562.)
It has been said that the life of the law is experience.
Nine years’ experience trying to derive meaning
from the residual clause convinces us that we
have embarked upon a failed enterprise. Each of the
uncertainties in the residual clause may be tolerable in
isolation, but their sum makes a task for us which at
best could only be guesswork. Invoking so shapeless
a provision to condemn someone to prison for 15
years to life does not comport with the Constitution’s
guarantee of due process.
(Id. at 2560 (citation omitted) (internal quotation
marks omitted).)
Although a strong victory for Johnson, the decision was
not unanimous. Two justices concurred separately. Justice Thomas wrote a lengthy concurrence expressing his
discomfort with contemporary vagueness doctrine and
comparing it to substantive due process, which he described
as “a judicially created doctrine lacking any basis in the
Constitution.” (Id. at 2563–64 (Thomas, J., concurring).)
Justice Thomas argued that mere possession of a shortbarreled shotgun does not satisfy the residual clause under
existing precedent, and therefore the Court need not have
even invoked vagueness doctrine to resolve Jackson’s case.
Although he did not definitively conclude that vagueness
doctrine has no legitimacy, Justice Thomas engaged in a
searching and critical exploration of the history of the
vagueness doctrine, an examination that he said the majority failed to conduct.
Justice Kennedy also concurred, though briefly. (Id. at
2563 (Kennedy, J., concurring).) Although he did not share
16
Justice Thomas’s opposition to the application of vagueness doctrine in general, he agreed with Justice Alito’s
argument in dissent that the residual clause is not vague.
However, Justice Kennedy concurred rather than dissenting
himself, agreeing with Justice Thomas that mere possession of a short-barreled shotgun simply does not satisfy
the clause’s requirements.
Only Justice Alito dissented, disagreeing that the residual
clause was unconstitutionally vague and finding that it
readily included possession of a short-barreled shotgun.
(Id. at 2573–84 (Alito, J., dissenting).) Justice Alito noted
that the Court has a duty to save rather than strike down
laws wherever possible, ironically citing Justice Scalia’s
own book about textual interpretation in support of
this assertion. (Id. at 2578 (quoting Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts § 38, at 247 (2012)).) He urged that
any difficulties interpreting the residual clause would be
resolved by eliminating the categorical approach—which
requires looking at prior offenses generically rather than
considering the facts underlying a particular conviction—
and instead allowing judges or juries to decide whether the
defendant’s actual conduct in a particular case presented
the requisite risk. (Id. at 2578–79.) Justice Alito argued that
the clause was not vague in part because the Court had
construed it on four previous occasions, twice expressly
rejecting a claim that it was vague, and in part because
numerous violent offenses such as attempted rape must
surely fall uncontroversially within its dictates. Finally, he
concluded that whether considered categorically or through
his proposed lens of case-specific review, Johnson’s prior
offense of possession of a short-barreled shotgun satisfied
the residual clause. Nonetheless, Justice Alito was alone in
advocating that Johnson’s 15-year sentence should remain
in place.
Johnson’s Impact: Far-Reaching Effects
The significance of the Johnson decision for the federal
criminal justice system cannot be overlooked. It immediately narrowed the scope of one of the most onerous
sentencing penalties in the criminal code. In Minnesota
alone, a dozen cases then pending at the district court level
for trial, plea, or sentencing were immediately affected,
with defendants now facing sentences of no more than
10 years where they had previously faced 15 years to life.
Many other cases were pending on direct appeal before the
Court of Appeals or the Supreme Court, and were swiftly
remanded for resentencing. These numbers were multiplied
across the country.
In addition, Johnson is being widely applied to another
even more commonly used recidivist enhancement, the
career offender provision found in the United States
Sentencing Guidelines (USSG). (USSG § 4B1.1.) The
career offender enhancement applies when a defendant
is facing a current prosecution for either a serious federal
drug crime or a federal crime of violence, and he or she
has at least two prior convictions for serious drug crimes
or crimes of violence. The definition of crime of violence
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found in the guidelines is virtually indistinguishable
from the violent felony definition found in the ACCA,
and most courts have applied decisions interpreting one
provision to cases involving the other, interchangeably.
(See USSG § 4B1.2(a)(2).) Therefore, Johnson has direct
implications for career offenders as well, who significantly
outnumber those affected by the ACCA. So far, it appears
that many courts will erase the residual clause from the
guidelines’ definition of crime of violence in light of
Johnson. Recently, the Sentencing Commission adopted
significant and expedited changes to the Career Offender
guidelines in light of Johnson, effective in August 2016.
Other federal statutes with very similar phrasing to the
residual clause, including 18 U.S.C. §§ 16(b) and 924(c) are
now being challenged as unconstitutionally vague as well.
It remains to be seen how broadly the Johnson decision
will be applied retroactively to the cases of defendants
already in prison serving long sentences under the ACCA
and the career offender guidelines. The law regarding
when a Supreme Court decision in a criminal case
applies retroactively is so complex, it makes the residual
clause look crystal clear by comparison. Several circuits
have held that Johnson satisfies the high threshold for
of the rule at issue was specifically promulgated after
the violation had already occurred, giving the Court little
difficulty in determining that the rule failed to provide the
broadcaster constitutionally required notice. Prior to that,
in City of Chicago v. Morales, the Court struck down a
loitering law, finding it gave the police too much discretion
and would lead to arbitrary enforcement. (527 U.S. 41
(1999).) But such successful vagueness challenges have been
the exception in modern-day jurisprudence, rather than
the rule. (See, e.g., Skilling v. United States, 561 U.S.
358 (2010); Nat’l Endowment for the Arts v. Finley, 524
U.S. 569 (1998); Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489 (1982).) And it had
been decades indeed since the Court held a sentencing
provision in a criminal statute to be unconstitutionally
vague. (See United States v. Evans, 333 U.S. 483 (1948).)
More critically, Johnson will breathe new life into
the doctrine because the Court decisively rejected one
of the most frequently articulated bars to vagueness
challenges: the idea that in order to be unconstitutionally
vague, a statute must be vague in “all its applications.”
(Hoffman Estates, 455 U.S. at 491 (finding that because
a statute governing sale of drug paraphernalia was only
Johnson is being widely applied to another even more
commonly used recidivist enhancement, the career offender
provision found in the United States Sentencing Guidelines.
retroactive application (see, e.g., Price v. United States,
795 F.3d 731, 734 (7th Cir. 2015)), while others have
reached the opposite conclusion (see, e.g., In re Rivero,
797 F.3d 986, 989–90 (11th Cir. 2015)). In all cases, the
government has taken a uniform national position that
Johnson is a substantive constitutional ruling that applies
retroactively to all ACCA cases, but not to the cases of
career offenders enhanced by the sentencing guidelines
rather than mandatory statutes. The Supreme Court
recently granted certiorari in Welch v. United States, No.
15-6418, agreeing to decide the retroactivity question on
a somewhat expedited basis.
Breathing New Life into Vagueness Doctrine
Johnson not only applies to the residual clause of the
ACCA and to very similar statutory provisions in
other federal criminal laws, but the decision also arguably reinvigorates the “void for vagueness” doctrine.
Indeed, it has been relatively rare in recent decades for
the Supreme Court to invalidate a statute for being so
unclear that it violates the due process clause, but Johnson may signal a shift in the Court’s reluctance to invoke
the prohibition on vague statutes.
In F.C.C. v. Fox Television Stations, Inc., the Court
struck down as unconstitutionally vague an FCC rule
governing swearing on television and radio. (132 S. Ct.
2307 (2012).) However, in that case, the interpretation
CRIMINAL JUSTICE n Spring 2016
unclear in some of its applications, it could not be declared
unconstitutionally vague).) The Johnson Court rejected this
characterization of its past decisions, stating that while
such a sweeping proclamation may be consistent with some
dicta from previous cases, it is contradicted by the Court’s
previous holdings.
For instance, we have deemed a law prohibiting grocers from charging an “unjust or unreasonable rate”
void for vagueness—even through charging someone a thousand dollars for a pound of sugar would
surely be unjust and unreasonable. We have similarly
deemed void for vagueness a law prohibiting people on
sidewalks from “conduct[ing] themselves in a manner
annoying to persons passing by”—even though spitting
in someone’s face would surely be annoying.
(Johnson, 135 S. Ct. at 2561 (alteration in original) (quoting
United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921);
Coates v. Cincinnati, 402 U.S. 611 (1971)).)
Therefore, one of the greatest impacts of the Johnson
decision may be that it widens the path to raise vagueness challenges to unclear statutes, even statutes in legal
arenas very different from the recidivist sentencing statute the Court considered.
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17
Reconsidering the Facial Challenge
A final significance of the Johnson decision, which will
also reverberate beyond the criminal context from which
the case arose, is that it invalidated a statutory provision facially, rather than just as applied to the individual
petitioner bringing the challenge. The Court has often
expressed a strong preference for as-applied challenges in
recent years, going so far as to say that a statute will be
declared facially unconstitutional only if “no set of circumstances exists under which the Act would be valid.”
(United States v. Salerno, 481 U.S. 739, 745 (1987).)
In Johnson, although it didn’t specifically discuss the
distinction between the facial challenge before it and a
narrower as-applied attack, the Court struck down the
entire residual clause of the violent felony definition of
the ACCA as unconstitutionally vague, going well beyond
holding that the residual clause is unconstitutionally vague
as applied to mere possession of a short-barreled shotgun.
“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.” (Johnson,
135 S. Ct. at 2563.)
Johnson was not alone this term in its treatment of facial
challenges. In City of Los Angeles, California v. Patel, the
Court considered a Fourth Amendment challenge to a city
statute that required hotel operators to turn their guest logs
I
n the spring of 1986, a new quarterly publication
appeared, named Criminal Justice, with the purposes
of publicizing the “significant role the [ABA Criminal
Justice] Section plays in influencing criminal law and
justice issues nationally” and providing section members
“with a new and reliable source of information on
practice questions” and a “regular, up-to-date picture of
emerging trends and policy questions in the criminal law.”
During the magazine’s first ten years, several different
editors were assigned to shepherd the serious articles
and columns through the publishing process. With the
Summer 1995 issue, a new editor appeared, MaryAnn
Dadisman. Twenty years later, MaryAnn, our mentor and
good friend, is retiring; it is difficult for those of us on
the Editorial Board and who are contributing editors to
imagine the magazine without her.
MaryAnn screened proposed articles that came in “over
the transom,” including student entries in the William
Greenhalgh competition, nudged often dilatory authors to
meet promised deadlines, edited articles and columns for
clarity and to comply with the ABA’s technical format, and
made sure that each issue has sufficient and appropriate
18
over to the police for inspection at any time, and agreed
with the hotel owners that the law violated the prohibition
against unreasonable searches. (135 S. Ct. 2443 (2015).) The
Patel Court was much more explicit in endorsing facial
challenges. The Court described the argument that a petitioner could not bring a facial challenge in the Fourth
Amendment context as reflecting a “misunderstanding”
of its prior decisions. (Id. at 2449–50.) With two decisions
issued a week apart, the Court significantly undermined a
growing perception that the modern Court is loathe to consider facial attacks. (See generally Michael C. Dorf, Facial
Challenges to State and Federal Statutes, 46 Stan. L. Rev.
235, 261–62 (1994); Richard H. Fallon Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915 (2011).)
“Don’t Go Away”
Admittedly, Johnson v. United States is not a watershed
case like Obergefell, the case that understandably received
all of the attention on June 26. However, its impact may
nonetheless be felt for many years, both in federal prisons
where thousands of people may be resentenced thanks to
its holdings, and in courtrooms around the country, where
vagueness challenges to criminal and civil statutes alike may
today be on stronger footing than they have been in many
years. Perhaps Johnson can be described as the sleeper decision of 2015. Only time will tell. n
articles and columns for a professional publication. In the
course of preparing the magazine for publication, MaryAnn
was able to negotiate with writers of different personalities
who may be prosecutors, defense counsel, academics, or
judges. Most importantly, MaryAnn provided an exceptional
institutional memory for the members of the Editorial
Board, even members of long standing. MaryAnn brought
her expertise in editing and publishing as well as her
knowledge of journalistic ethics to the Board’s discussions
of policies and procedures as the magazine developed its
standards and guidelines, formal and informal. MaryAnn’s
ideas and insights often enabled a group of lawyers
who were defense attorneys, prosecutors, academics,
and judges to make decisions about the magazine that
were both pragmatic and professional from a journalistic
perspective. MaryAnn has been the one person who has
enabled the magazine to provide respected and cutting
edge information on criminal justice issues every quarter
for the past twenty years, meeting the mission statement
written so long ago. We will surely miss her wise counsel
and her sunny disposition, and wish her a long and
enjoyable retirement.
CRIMINAL JUSTICE n Spring 2016
Published in Criminal Justice, Volume 31, Number 1, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This
information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express
writtenconsent of the American Bar Association.