Academic journal article The William and Mary Bill of Rights Journal

The Flawed Reasoning Behind Johnson V. United States and a Solution: Why a Facts-Based Approach Should Have Been Used to Interpret the Residual Clause of the Armed Career Criminal Act

Academic journal article The William and Mary Bill of Rights Journal

The Flawed Reasoning Behind Johnson V. United States and a Solution: Why a Facts-Based Approach Should Have Been Used to Interpret the Residual Clause of the Armed Career Criminal Act

Article excerpt

INTRODUCTION

The Armed Career Criminal Act (ACCA) is a United States federal law that provides sentencing enhancements to felons who commit crimes with firearms.1 The ACCA is triggered if the felon has been convicted of certain other crimes three or more times.2 Under the Act, anyone who has three prior convictions for a "violent felony" or a "serious drug offense" is subjected to a mandatory minimum sentence of fifteen years to life, instead of the ten-year maximum sentence prescribed by the Gun Control Act.3 The applicable ACCA section defines "violent felony" and "serious drug offense" with different categories, with one part of the "violent felony" definition including any felony that "involves conduct that presents a serious potential risk of physical injury to another."4 This is known as the residual clause.5

The Supreme Court case Taylor v. United States6 was the first to interpret the residual clause and established the process of determining whether a crime constitutes a violent felony.7 The Court held that, when determining if a crime constitutes a violent felony, "the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense."8 In other words, Taylor established that a court must look to the elements of the crime of conviction, not the individual circumstances that led to an offender's conviction. This process is known as the categorical approach.9

On June 26, 2015, in Johnson v. United States, the Supreme Court issued a ruling that declared the residual clause unconstitutional.10 The Court held that the clause- requiring a court to look only at the elements of the crime of conviction-leaves grave uncertainty as to estimating the risk involved in any crime, and that it produces unpredictability and arbitrariness from judges.11 For these reasons the Court held that the clause violates the Due Process Clause of the Fifth Amendment for vagueness.12 In so holding, the Court contradicted four of its own decisions from the past decade that applied the residual clause.13 Justice Alito filed a lengthy dissent, stating that "the Court is not stopped by the well-established rule that a statute is void for vagueness only if it is vague in all its applications" because, he asserted, the Court simply wanted to get rid of all residual clause cases for the future.14

The decision has left questions that affect many individuals sentenced under this statute, including whether the decision will be applied retroactively and allow for resentencing hearings for those individuals. Furthermore, there is now a circuit split over whether the holding of Johnson should be applied to other statutes, including an identical statute in the Federal Sentencing Guidelines.15

This Note will first analyze the applicable ACCA section, the prior case law overruled by Johnson, and the majority opinion and dissent of Johnson. It will argue that the Court's analysis in Johnson is flawed, that the problem is not with the wording of the residual clause, but instead with the categorical approach that was previously used to analyze residual clause cases. it will then argue that a different approach to the residual clause, looking to the facts of a defendant's prior convictions, is workable, and therefore the Court should not have declared the clause unconstitutional. Finally, this Note will then look to the implications of the decision and argue that similar sentencing enhancement statutes are now unconstitutional after Johnson.

I. Background

A.The Armed Career Criminal Act

It is a federal offense for a felon to be in illegal possession of a firearm.16 The ACCA states that any felon who is convicted of illegally possessing a firearm and who has three prior convictions for a "violent felony," "serious drug offense," or both, "committed on occasions different from one another," shall be "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. …

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