Supreme Court reinforces unconstitutionality of key sentencing phrase

All eyes this week were appropriately on the Supreme Court’s consideration of President Obama’s immigration executive actions. Just before attorneys in that monumental case took to the lectern Monday morning, the Court released an important decision reinforcing its earlier holding that a key sentencing law phrase is unconstitutional. In Welch v. United States, No. 15-6418, slip op. (April 18, 2016), the Court held that a sentencing enhancement that turns on whether a defendant has previously been convicted of a “violent felony” cannot be applied regardless when the conviction occurred.

At the heart of Welch is the Court’s 2015 decision in Johnson v. United States, 135 S. Ct. 2551 (2015). There the Court held that the so-called residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is so vague that it violates the Due Process Clause of the Fifth and Fourteenth Amendments. Though there is nothing constitutionally problematic about statutes that are ambiguous, the residual clause’s definition of a violent felony as an offense that “involves conduct that presents a serious potential risk of physical injury to another” was “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson, 135 S. Ct. at 2556. Known as the void-for-vagueness doctrine, this legal principle essentially prohibits punishment under statutes that no one could possibly know what activity they targeted. [For more on Johnson from Linus Chan, see here.]

On Monday, the Court added that Johnson applies retroactively. No matter when the conviction occurred—in 2010 in Mr. Welch’s case—the ACCA residual clause could not result in enhanced punishment. Though not surprising that the Court reached this conclusion (since the federal government agreed with Mr. Welch), it is nonetheless important. Most judicial decisions, even those issued by the Supreme Court, apply prospectively. They change they law moving forward, but don’t alter the law as it previously was applied. Not so for Johnson’s conclusion that the residual clause is too vague to enforce. It is a “substantive rule” of criminal procedure, the Welch Court held, because it “changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.’” Welch, No. 15-6418, slip op. at 9 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). It is not, as the attorney appointed by the Supreme Court to defend the lower court’s decision argued, a “procedural” decision because it “had nothing to do with the range of permissible methods a court might use to determined whether a defendant should be sentenced under the Armed Career Criminal Act.” Id. Accordingly, under the Court’s “normal framework for determining whether a new rule applies to cases on collateral review,” Teague v. Lane, 489 U.S. 288 (1989), Johnson constitutes a substantive rule that applies retroactively to convictions entered before Johnson was announced. Id. Justice Thomas dissented.

Though Welch presents as a straightforward criminal sentencing decision, it has potentially substantial implications for anyone involved in crimmigration work. The ACCA residual clause uses language that closely resembles the definition of a “crime of violence,” a type of aggravated felony that frequently results in detention and removal of migrants through the nation’s immigration court system. In the 10 months since Johnson was issued, advocates have relied on Johnson’s reasoning to attack the constitutionality of the crime of violence basis of removal. So far their efforts have proven remarkably successful. As crImmigration.com has reported, the Fifth, Seventh, and Ninth Circuits have agreed (see here, here, and here).

Welch bolsters these attacks in two ways. First, it reiterates the Court’s distaste for the ACCA residual clause and its resurgent interest in the void-for-vagueness doctrine. The late Justice Scalia wrote the eight-justice majority opinion in Johnson. Welch signals that, despite his absence, the Court is no less inclined to put up with statutes that attach enormous consequences to “indetermin[ate]” language that fosters “wide-ranging inquiry,” as the Court unenthusiastically described the residual clause in Johnson. 135 S. Ct. at 2557.

Second, Welch ought to encourage advocates who are using Johnson to challenge the crime of violence definition because, if successful, they won’t just win; they will win big. The crime of violence definition could be attacked from the moment it was added to the Immigration and Nationality Act in 1990, opening up the possibility that migrants removed since then have suffered that ordeal unconstitutionally.

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