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Supreme Court Strikes Down “Residual Clause” of Armed Career Criminal Act

| June 26, 2015

In an opinion that will likely be overshadowed by the Obergefell decision handed down the same day, a major ruling on overcriminalization was delivered at the Supreme Court on Friday. The Court ruled that enhanced sentences under the Armed Career Criminal Act’s “residual clause” is unconstitutionally vague and thus violates due process under the law.

In the underlying case, the Defendant, Samuel Johnson, a previously convicted felon, was being investigated by the FBI for his alleged involvement in domestic terrorism. Mr. Johnson showed undercover agents several firearms he possessed and was subsequently arrested. Johnson pled guilty to being a felon in possession of a firearm. Under the Armed Career Criminal Act of 1984 (“ACCA”), a felon who is in possession of a firearm can face up to ten years in prison. However, if the offender has three or more earlier convictions for a serious drug offense or a violent felony, a mandatory minimum of 15 years kicks in and the sentence can go all the way up to the possibility of life in prison.

One of the ways a “violent felon” is defined under the ACCA is as an individual who “otherwise involves conduct that presents a serious potential risk of physical injury to another.” This has been coined the “residual clause” of the ACCA and has come under scrutiny in years past by the Supreme Court due to the vagueness of the phrase but has not been overturned until now. In this case, the previous “violent felony” that enhanced Johnsons sentenced under the “residual clause” was unlawful possession of a short-barreled shotgun.

In an 8-1 decision in the judgment (Thomas and Kennedy filed concurring opinions in the judgment), the Court, with Scalia delivering the opinion, referenced the Due Process Clause, stating that the government cannot take “away someone’s life, liberty, or property under criminal law so vague that it fails to give ordinary people fair notice of the conduct, or so standardless that it invites arbitrary enforcement.” The Court went on to state that the residual clause fails this test because the wording “leaves grave uncertainty about how much risk it takes for a crime to qualify as a violent felony,” and thus is unconstitutionally vague.

The case proves this effectively as the mere possession of a sawed off shotgun leaves the offender in doubt as to whether this would be considered a “violent felony” or not, which is the true definition of vagueness.

The fact that the Court looked at this same statute in years past and upheld its constitutionality and now have overruled it for vagueness is a major step in right direction for all constitutionally vague criminal statutes. The ramifications of this opinion will affect courts at all levels when interpreting other unclear criminal statutes that leaves citizens in the dark as to whether they are to be criminally culpable and will require lawmakers to draft statutes with much more clarity to pass constitutional muster.

You can find the opinion here.


GREG GLOD  is a Policy Analyst for Right on Crime as well as the Center for Effective Justice at the Texas Public Policy Foundation. Based in Austin, Texas, Glod is an attorney who began his legal career as a law clerk for the Honorable Judge Laura S. Kiessling on the Circuit Court for Anne Arundel County, Maryland. He subsequently practiced at a litigation firm in Annapolis, Maryland before joining Right on Crime and the Texas Public Policy Foundation. In 2010, he graduated from The Pennsylvania State University with B.A. degrees in Crime, Law, and Justice and Political Science. In 2013, Glod received his J.D. from the University of Maryland School of Law.