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Monday, April 20, 2015

A Few Thoughts on Johnson v. United States and the Void for Vagueness Doctrine

While most Court watchers are gearing up for the same sex marriage cases, I’ve been eagerly awaiting this morning’s argument in Johnson v. United StatesJohnson is an odd case.  The Supreme Court originally granted cert on the narrow issue whether possessing a short-barreled shotgun qualifies as a violent felony under the Armed Career Criminal Act.  The parties briefed that issue and argued it before the Court.  But then, rather than deciding the case, the Justices set the case for re-argument and asked the parties to brief whether a portion of the ACCA is unconstitutionally vague.

Over at SCOTUSBlog, Rory Little has a very good overview of the case. He also summarizes the Solicitor General’s brief on the vagueness issue, calling it a “tour de force.”  I agree with Little that the government’s brief is quite good.  But I wanted to take a quick minute to articulate what I see as a relatively significant oversight in the Solicitor General’s analysis.

The government’s brief, which can be found here, argues that, because the relevant clause of the ACCA involves a non-capital sentencing issue, the defendant’s burden to demonstrate vagueness is higher than it would otherwise be.  In particular, the government says “the standard to invalidate a sentencing provision as vague is, at a minimum, much more demanding than the standard that applies to a statute defining criminal conduct,” and it cites Chapman v. United States, 500 U.S. 453 (1991), for this point (p. 17).  I think that this government argument fails to appreciate how much the Court’s Apprendi line of cases have changed the constitutional landscape surrounding sentencing provisions.

Chapman involved a statutory mandatory minimum sentence for distributing LSD.  The question presented in that case was whether the weight of the pure LSD or the weight of the LSD plus the blotter paper on which the petitioners sold their LSD was the legally relevant weight that triggered the mandatory minimum.  One of the arguments that the petitioners raised was that failing to use the pure weight of LSD was arbitrary, that there is a fundamental due process right to be free from deprivations of liberty based on arbitrary determinations, and that the government therefore had to demonstrate that its decision to use the weight of the blotter paper furthered a compelling governmental interest.  The Chapman Court rejected this argument, stating that it was sufficient that the government had a rational basis for its sentencing classification.  Since Chapman, many lower courts have cited the decision for the proposition that legislative sentencing decisions are subject only to rational basis review.

I have little doubt that Chapman is still good law.  As I have written elsewhere, the courts generally do not subject sentencing factors to much constitutional scrutiny.  But Chapman was decided prior to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).  And since it decided Apprendi, the Supreme Court has tended to treat sentencing provisions, such as the one at issue in Johnson, more like new substantive crimes.  To be precise, the relevant portion of the ACCA imposes a mandatory minimum sentence for those defendants who have three previous convictions for violent felonies and serious drug offenses.  One of the most recent decisions in the Apprendi line of cases, Alleyene v. United States, 113 S. Ct. 2151 (2013), held that any fact that increases the mandatory minimum sentence for a crime in an element of that crime, not a sentencing factor.  In treating facts that trigger mandatory minimums as elements, the Alleyne Court held that they must be submitted to a jury and proven beyond a reasonable doubt.

I don’t think that Alleyne dictates any particular result in Johnson.  But I do think that it forecloses the government’s argument about sentencing provisions not commanding the same sort of vagueness analysis as statutes defining criminal conduct.  That is because, after Alleyne, the Court treats this portion of the ACCA as if it is an element of a new statute – one that defines which criminal conduct is necessary for a new sentencing range with a minimum sentence of 15 years.

In any event, I am looking forward to reading the Johnson oral argument transcript as soon as it is available.

Posted by Carissa Byrne Hessick on April 20, 2015 at 11:47 AM in Criminal Law | Permalink


Not sure I'm totally following you, WG. But I think the ACCA creates both problems. Without the enhancement, the ACCA state max is ten years. With the enhancement, the stat *minimum* is 15 years.

Posted by: carissa | Apr 20, 2015 1:34:36 PM

Or maybe I misunderstood: the sentencing statute would become, in effect, a mandatory minimum and therefore there would be no judge-found-fact problem.

Posted by: WG | Apr 20, 2015 1:30:03 PM

But wouldn't the second point still hold if there were no mandatory minimum but a 10 yr statutory max? Or if the sentencing statute didn't apply to the mandatory minimum? It seems like there would still be an Apprendi problem of the type I (clumsily) tried to spell out.

Posted by: WG | Apr 20, 2015 1:19:56 PM

Both very interesting comments!

First, Alleyne doesn't repeat Apprendi's limitation regarding prior convictions. In fact, Fn 1 in Alleyene says "In Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision's vitality, we do not revisit it for purposes of our decision today."

Of course, that Alleyene didn't double down on the prior convictions limitation isn't the same as overruling it (although Justice Thomas has indicated that he is willing to do so). And so I suppose the Johnson Court could agree with the government about sentencing provisions that involve only prior convictions . . .

Second, although Apprendi was limited to facts that increase a statutory max, Alleyne overruled Harris and extended the Apprendi rule to facts that trigger a mandatory minimum.

Posted by: carissa | Apr 20, 2015 12:57:28 PM

I agree with your analysis, but (without having read the government's brief) here are two countervailing concerns:

1) The fact of prior convictions does not have to be found by a jury in order to trigger an increased (above the max) sentence--it is an exception under the Apprendi line of cases, and therefore prior convictions resemble "judge found" facts more typical of sentencing factors.

2) Under Apprendi, a vagueness analysis should only matter where the sentencing factor increased the sentence beyond the statutory max. Eg, if the statutory max was 10 yrs, it's possible for a sentencing law to say "give 'em the 10 yr max if the prior convictions were really bad" without triggering a valid vagueness challenge, but a law that says, "give 'em 10 yrs and 1 day if the prior convictions were really bad" is void for vagueness. Why should vagueness concerns (as opposed to some other rationale) trigger invalidation in one case and not the other? Indeed, the only difference between the two laws is NOT due to vagueness; it is a discrete difference of 24 hrs.

At any rate, I think you're right about the analysis. The weirdness noted above probably stems from the inconsistent (incomplete?) development of Apprendi etc.

Posted by: WG | Apr 20, 2015 12:31:30 PM

But Alleyne specifically excluded prior convictions from its "facts as elements" rule, didn't it?

Posted by: Name | Apr 20, 2015 12:16:59 PM

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