JOHNSON v. UNITED STATES Don t Go Away BY KATHERINE MENENDEZ On 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. 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, 12 CRIMINAL JUSTICE n Spring 2016
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. 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. CRIMINAL JUSTICE n Spring 2016 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: 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 14 CRIMINAL JUSTICE n Spring 2016
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 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 CRIMINAL JUSTICE n Spring 2016 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 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 16 CRIMINAL JUSTICE n Spring 2016
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 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. CRIMINAL JUSTICE n Spring 2016 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 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 In 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 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. 18 CRIMINAL JUSTICE n Spring 2016