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January 8, 2016

SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!

The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:

Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States.  A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.

Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release.   The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.

The new case is Welch v. United States; it will be argued in March.

January 8, 2016 at 03:57 PM | Permalink


Someone needs to explain to me how invalidating a statute on vagueness grounds -- a decision that recognizes that Congress has the power to increase sentences for certain offenders but must do so more clearly -- is a substantive rule on par with a decision narrowing the scope of a statute or holding that the conduct was beyond Congress's power to proscribe.

Posted by: Da Man | Jan 8, 2016 4:21:29 PM

If a law is invalid, shouldn't all defendants imprisoned under it be released?

Some lawyer explain the controversy. Say, witchcraft is now legal. Why wouldn't all witches imprisoned under the old law be released?

Posted by: Supremacy Claus | Jan 8, 2016 11:08:27 PM

S.C., never thought I'd say it, but very nicely reasoned. You should become a lawyer and rent-seeker yourself!!

Posted by: anon | Jan 9, 2016 9:38:23 AM

That's a false analogy. No one has said that sentencing enhancements for prior convictions are prohibited. Rather, the court said this law can't be enforced until it's made more clear. Show me one SCOTUS case giving retroactive effect to a decision striking down part of a statute on vagueness grounds

Posted by: Da Man | Jan 9, 2016 10:01:37 AM

Vagueness, serious potential for physical harm. Residual clause for career and armed career criminals. Owi, driving a stolen dump truck. Etc

I agree with SC, if the law has changed or is invalid, past and future cases are exempt.

End the panny waste crap that congress creates.

Congress has a Paper Asshole. This is the main problem.

Posted by: MidWestGuy | Jan 9, 2016 11:24:57 PM

Generally speaking, congress cant organize a 2 car parade and have it come within budget.

Sad to say, but its where we are. Abe Lincoln would tell'em.

Posted by: MidWestGuy | Jan 9, 2016 11:26:57 PM

Da Man. The clarification appears to have made things worse. Violent crime now includes the threat of violence. It does not even qualify the threat as imminent with credibility from preparation and initiation. We are drunk, discussing a legal controversy, and as William Buckley did to Gore Vidal, discussing the 1968 Convention, I threaten to slap you in the goddam face, and you will stay plastered, should that be recorded for future sentencing consideration?


Posted by: Supremacy Claus | Jan 10, 2016 1:53:07 AM

Anon. I take your comment as a compliment.

In the rent, the taxpayer pays at the point of a gun, but gets nothing back of any value.

Or from the original term, the serf gives a third of his crop to the lord, and only prevents his being killed by the lord. The lord does not even provide protection from Vikings. Protection from the Vikings would have tremendous value, and it would be called a profit.

So an effective legal system is a tremendous profit, and not a rent. You have natural experiments, such as Fallujah, where the law ran away. People were spending all their time on physical survival and in abject poverty.

Right now, every goal of every law subject is in failure. The sole successes of the law? It is so weak that people are able to ignore it, and do well. The lawyer profession and its agents are raking in a $trillion.

Imagine a nation where the self stated goals of every law subject were fulfilled at a 90% level. It would be wealthy beyond imagination and advance at supersonic speed. How valuable is that?

Posted by: Supremacy Claus | Jan 10, 2016 7:55:56 AM

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