Johnson Argument on Vagueness—and Plea Bargaining?

Today the Supreme Court held argument on whether the residual clause of the Armed Career Criminal Act is vague, not vague, or subject to a saving construction. Early on, Justice Alito asked a question that I think is at the heart of the case--namely, “whether the statute is unconstitutionally vague or whether this Court’s interpretations of the statute create the basis for a vagueness argument?” Or, as I’ve put it before, Who made a vague law vague? (For his part, Justice Alito seemed skeptical that "a statute [can] be vague simply because this Court messes it up.")

In this post, I will set aside the main vagueness debate to highlight a surprising aspect of the argument: the Chief Justice’s concern about prosecutorial overreaching during plea bargaining. This issue is becoming a theme for the Chief—and could have important implications.

1. Yates. Earlier in the term, the Court heard Yates v. United States, a much-discussed case about over-criminalization. (My take is here.) For present purposes, the important thing about Yates is that the government was prosecuting a fisherman for destroying evidence—namely, illegally caught fish—and the government seemed to explain that decision by invoking a surprising policy.

Here’s the key statement from the Solicitor General’s attorney:

[M]y understanding of the U.S. Attorney's Manual is that the general guidance that's given is that the prosecutor should charge -- once the decision is made to bring a criminal prosecution, the prosecutor should charge the – the offense that's the most severe under the law. That's not a hard and fast rule, but that's kind of the default principle.

This led to a series of skeptical questions, including the following thoughts on plea-bargaining from the Chief Justice:

CHIEF JUSTICE ROBERTS: But according -- if I understand your answer to Justice Scalia, according to the Justice Department manual, any case in which someone destroys a tangible object, you – you should prosecute them under this statute, because I assume 20 years is the maximum available penalty?

[UNITED STATES]: Your Honor, we would not – we do not prosecute every fish disposal case, and we do not. So I think if you --

CHIEF JUSTICE ROBERTS: But the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you you're facing 20 years, so why don't you plead to a year, or something like that. It's an extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.

Set aside the remarkable line about how the government “do[es] not prosecute every fish disposal case.” The real action here is that the Chief Justice is so concerned about the dynamics between prosecutors and defendants. Practitioners and scholars have been exploring these dynamics for a long time, but the Supreme Court has generally been indifferent to them. And in the main exceptions to that pattern—the Court’s major 2012 decisions on plea-bargaining and ineffective assistance in Lafler and Frye—the Chief Justice dissented. Yet the Chief made plea-bargaining a salient part of the Yates argument and ultimately ruled against the government in that case.

2. Johnson. In today’s Johnson oral argument, the Court was hearing about a different federal statute that posed an almost totally different set of legal questions. Yet Chief found it appropriate to draw on the same plea-bargaining reasoning that he advanced in Yates.

Here’s the Chief in dialogue with the Solicitor General’s attorney:

CHIEF JUSTICE ROBERTS: … [T]he problem is -- the problem is not what the government argues when it gets into court. The problem is what the prosecutor threatens when he's entered into plea bargain negotiations. This is the point that Justice Ginsburg touched on. You are putting the defense counsel in a position where they have to interpret the vagueness in making the decision when whether they want to plead to five years or risk the mandatory minimum of – of 15.

And your guidelines say a lot, but I thought one of the things your guidelines say is that you should prosecute the — the maximum extent that you can, right? Isn't it you should charge the maximum if you if you charge and then the prosecutors go in and say, look, I could charge you this much and or I could or I could -- I mean, I could add this charge to what I've got and then you'd face 15 years. And defense counsel said, well, all right. Let me see if we're guilty of that. And he's going to read that and have no idea whether they're covered by it or not.

And again:

CHIEF JUSTICE ROBERTS: … I disagree with the statement you made. You said if there's -- because there are so many years involved, people will litigate hard. I think because there are so many years involved, people won't litigate at all. I mean, if – if they're facing when if they go to trial such a large enhancement, I think they're going to be compelled -- it gives so much more power to the prosecutor in the plea negotiations which is, of course, where almost all of the cases are disposed of.

This is really something. For one thing, the Chief is still hung up on the government’s “guidelines” from Yates, which apparently “say … that you should prosecute … the maximum” once a charging decision has been made. For another thing, the Chief ends by focusing on the criminal trial’s decline and the related rise of arguably coercive plea-bargains—which, again, is precisely what drove the majority decisions in Lafler and Frye.

3. Let me make two admittedly speculative points about all this.

First, I think it is plausible that the Chief is becoming attuned to problems of coercion in a way that is uncommon in the federal courts. In the healthcare case, the Chief found unconstitutional coercion of states resulting from a federal spending program. It seems like the Chief's solicitude toward state coercion has spread to consideration of individual coercion in the criminal context.

Second, if the dynamics of plea-bargaining continue to play such an important role in the Chief’s thinking, then we may see a significant new pro-defendant vote in criminal justice cases. Indeed, the outcome in Yates and the argument in Johnson suggest that that might already have happened.