Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA

This past weekend afforded me the opportunity read more closely the various opinions in the big SCOTUS constitutional sentencing ruling in Johnson v. US striking down a provision of the Armed Career Criminal Act (ACCA) as unconstitutionally vague.  Looking forward, it will be interesting to see how many federal prisoners will claim Johnson demands they receive a lower sentence and also to see how various lower courts sort through such claims.  (I flagged some post-Johnson litigation issues in this prior post, and I will say more on this front in future posts.)  Here I want to look back a bit to explain why I think Justice Alito was unable to get a single colleague to support his suggested ACCA jurisprudence revision to preserve the sentencing provision stuck down in Johnson.

The Court is Johnson finds so much uncertainty in the ACCA residual clause because it "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."  The Court stressed that it "is one thing [and presumably constitutional] to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction."  I think the Johnson majority is basically right on this front, especially seeing how lower courts have struggled greatly mapping various offenses abstractly onto ACCA's residual clause.

But Justice Alito has a readily response: noting ACCA "makes no reference to 'an idealized ordinary case of the crime," he contends the "residual clause can [and should] be interpreted to refer to 'real-world conduct'."  In other words, Justice Alito has a solution to the interpretive problems lamented by the majority: rather than looking at prior convictions in the abstract, sentencing courts could and should engaging in a "conduct-specific inquiry" to assess whether a prior offense presented a "serious potential risk of physical injury."

But while sounding like a viable and reasonable solution, I suspect Justice Alito's suggestion was rejected by all the other Justices because they could see many real-world challenges posed by a "conduct-specific inquiry" in this ACCA setting.  For starters, if a factual inquiry determined ACCA predicates, sentencing courts would have to conduct mini-trials to look at all the real-world conduct behind (long-ago) priors. The mini-trials of priors would implicate an array of complex Fifth and Sixth Amendment procedure issues --- e.g., what would be the burden of proof for the judge (or jury)? would the defense be able to call witnesses and assert confrontation rights?  what review standard applies for the (factual/legal?) determination of "serious potential risk"?

Moveover, with each ACCA case hinging on factual rulings about "real-world conduct," there could be no firm ACCA precedents: even after one court decided defendant Al's real-world drunk driving or flight from the police triggered ACCA, defendant Bert could and would still litigate the same issue in the next case based on his own distinct "real-world conduct."  Even in cases that facially should be easy ACCA calls, the prosecution or the defense might try to argue unique "real-world" conduct made, say, an offense of littering especially risky or an offense of sexual imposition especially safe.

Finally, Justice Alito's own concluding approach to Johnson's case itself reveals how ipse dixit the analysis of "real-world conduct" would still be under ACCA.  Obviously eager to trump up the seriousness of Johnson's shotgun possession offense, Justice Alito asserts "drugs and guns are never a safe combination" and posits that "collateral damage" and "carnage" were real possibilities.  But he seems to be making suppositions as a means to an end no more firm or determinate than considering shotgun possession in the abstract.

In short, I suspect Justice Alito was unable to convince any of his colleagues to embrace his "real-world conduct" approach to ACCA because they understood that this approach would likely create more real-world problems than it would solve.

Some prior posts on Johnson and its possible impact:

• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strongJohnson claims" (and how many lawyers will help figure this out)?