Don’t be vague, ask for Haig.

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[Did you know that a law might be so poorly written that the Supreme Court would strike it down for that reason alone? It doesn’t happen often, but it did in the last term. That makes the case noteworthy, but there’s more. The subject was firearms, always a crowd-pleaser; and the issue was criminal sentencing, too harsh or too lenient? But the real question involved the U.S. Constitution, and in deciding it the Court reversed some of its earlier decisions. And, last but not least, the majority opinion was written by Justice Scalia. I’m sure you’ve all heard about him. He’s not known popularly as a consensus-builder and was a notable dissenter last year. But this time he managed to get five other justices to agree on an opinion and two more with his result.

This all sounds like a good story so, when Larry called the other day to suggest we do a blog on it, I agreed. Instantly. Take it away, Larry!]

Thanks, G. Let’s start at the beginning. The case is Johnson v. United States,[2] and the facts are relatively simple. Mr. Johnson had pleaded guilty to being a felon in possession of a firearm,[3] so he was subject to some jail time.[4] The Government, citing the Armed Career Criminal Act[5] [the “ACCA”], argued that the ordinary sentence for that crime should be enhanced in his case. The ACCA says that anyone convicted of three prior “violent felonies” should be sentenced for a minimum of 15 years for the fourth offense, violent or not.[6] The District Court agreed and imposed the 15-year sentence. The Eighth Circuit affirmed.

And what’s a “violent felony”? Well, 18 U.S.C. §924(e)(2) [a part of the ACCA] defines it as a

… crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another …[7]

[OK, I understand this part. If defendant has three convictions involving “violent felonies,” and racks up another one, this time under the Federal Firearms laws,[8] he [or she] gets an enhanced sentence for the fourth violation. That seems clear enough. What was Mr. Johnson’s complaint?

Well, one of his earlier convictions was for possessing a short-barreled shotgun, a big no-no in Minnesota, but there’s no evidence that he used the gun violently. That didn’t matter to the Government. The Government said mere ownership of the shotgun was enough. Section 924(e)(2)(ii) defines a violent felony as one that “… otherwise involves conduct that presents a serious potential risk of physical injury to another.” No actual violence is required; only a “serious potential risk” of physical injury. Once you have that, the felony is “violent” by definition.

[Well, “serious potential risk” does sound a bit loose. In fact, in Johnson’s situation it could have meant practically anything. There are people who think all guns are risky. They’re evil powers in themselves and shouldn’t be allowed loose in our country. So why not say if someone owns a gun, he or she is obviously under an evil influence, and is always at “serious potential risk” of doing something bad?]

Perhaps. But I see an even bigger problem. To make the sentencing decision, the trial court must analyze prior convictions as well as the case before it. How else would the judge know whether the priors involved a “serious potential risk?” I’m sure that can be a great bother, and relevant documents and testimony simply may not be available. How does a trial judge the risk of past acts tried in a different court?

[How indeed? But as I said before, “serious potential risk” is a pretty spongy term. The defendant also has a problem. How does he, in the past, know what some future prosecutor or judge might decide about an offense years after the fact and in an unrelated sentencing hearing?”]

This is getting confusing, but I think I get your point. My answer is, “[A]y, there’s the rub.”[9] You see, we’re supposed to be very picky in this country about our criminal statutes. They need to be clear enough to tell the public what it shouldn’t do. Why? Because the 5th Amendment to our Constitution[10] requires it.

The Fifth Amendment provides that “[n]o person shall … be deprived of life, liberty, or property, without due process of law. Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty or property under a 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.[11]

That is from Justice Scalia’s majority opinion in Johnson v. United States. No doubt most of you can guess where it’s leading.

[He’s going to overturn the “enhanced sentencing” levied on Johnson?]

Yes. The main issue was whether the ACCA, or the part of it that deals with enhanced sentences, clearly told the public what was forbidden or required. It’s not enough that lawyers might later argue about what it means. What counts is whether the public is on prior notice of the acts it should avoid. The majority concluded that this was not the case. “We are convinced,” the majority said, “that the indeterminacy of the wide-ranging inquiry required … both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing the defendant’s sentence under [§ 924 (e) (2) (ii)] denies due process of law.”[12]

So the Supreme Court reversed the lower court and essentially struck the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” from the statute.[13]

The two concurring justices, Thomas and Kennedy, didn’t accept the due process argument, but thought the lower court should be overruled anyway. They said the ACCA had been applied incorrectly in Johnson’s case, and there was ample precedent to support that. “Under ordinary principles of statutory interpretation, the crime of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under ACCA.”[14] But they didn’t agree that any part of ACCA was unconstitutionally vague. Indeed, Justice Thomas challenged the “vagueness doctrine” itself as “a judicially created doctrine lacking any basis in the Constitution.”[15]

[I notice you’ve skipped over the rather large amount of detail about how the Court interpreted the ACCA in prior cases. Why is that?]

Because we have limited space and time. Also, now that the Court has struck down the language at issue, those cases probably aren’t relevant to the future. However, they are interesting, and anybody who wants to read them should do so.

[Apologies to Justice Thomas, but I like the idea that criminal statutes ought to be clear enough for ordinary people to understand. Folks shouldn’t have to wait for the prosecutor to tell them whether they’re in trouble.]

Yes, and it’s a novel idea: Congress writing laws that people, not just lawyers can understand. Who knows where it will all end if Republicans and Democrats take this seriously? Corporate America will shudder. Congressional and private lobbying staff will have to be retrained. The untrainable may lose their jobs. Thousands could go! Think of the costs! What would happen to the D.C. real estate market? O tempora, O mores![16]

[1] See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) at p. 7, Advertising slogans, n. 17. Henceforth this Dictionary will be cited as ODQ at __. The slogan is old, dating from around 1936.

[2] Johnson v. United States, 576 U.S. ___ (2015) (slip opinion, June 26, 2015). Justice Scalia wrote the majority opinion; Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan joined it as well. Justices Kennedy and Thomas concurred in the judgment. Justice Alito dissented. Since we only have the slip opinion, and the majority, concurring and dissenting opinions are separately numbered, we’ll cite them as Johnson, majority opinion (Scalia) at __, concurring opinion (Kennedy) at __, concurring opinion (Thomas) at __, or dissent (Alito) at __.

[3] See 18 U.S.C. §922(g).

[4] Some have argued that I should have said “prison” rather than “jail.” I checked the Compact Oxford English Dictionary (3rd Edition, 2005), and the two words seem to mean pretty much the same thing. A “prison” is “a building in which criminals or people awaiting trial are confined;” while a “jail” is “a place for holding people accused or convicted of a crime.”

[5] See 18 U.S.C. §924.

[6] See 18 U.S.C. §924(e)(1). “In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).”

[7] See 18 U.S.C. §924)(e)(2). Did I mention that you can download the U.S. Code for free from the Government Printing Office? If you’re looking to find this text, you can get it directly from the Government Printing Office at

[8] By that I mean, under Chapter 44 of Title 18, U.S. Code.

[9] See ODQ at p. 686, William Shakespeare, n. 9. The quote is from a long soliloquy in Hamlet, Act 3, Scene 1.

[10] You remember that, don’t you? The 5th Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

[11] See Johnson, majority opinion (Scalia) at 3. Citations omitted.

[12] See Johnson, majority opinion (Scalia) at 5.

[13] See Johnson, majority opinion (Scalia) at 15. “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….Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.”

[14] See Johnson, concurring opinion (Thomas) at 2 Justice Kennedy agreed with this part [i.e., Part I] of the Thomas opinion.

[15] See Johnson, concurring opinion (Thomas) at 2 The entire discussion, at p. 5-19 is fascinating, if you like that sort of thing.

[16] That’s from Cicero, the Roman orator. It means, roughly, “Oh the times, Oh the customs!” It’s in the ODQ at Cicero, p. 223, n. 16, but I got it initially from my memory. It’s one of the few quotes I remember, because it’s short.