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June 29, 2015

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:

June 29, 2015 at 01:55 AM | Permalink


Doug, I'll post a lot on this case after digesting it and determining how much of it can apply beyond the ACCA.

However, a quick first comment that , to me, the most remarkable sentence in Justice Scalia's opinion for the Court is his hat tip to the opening page of Justice Holmes' classic, The Common Law." "It has been said that the life of the law is experience" A very close paraphrase to the famous sentence.

Holmes is the quintessential legal realist who believes in an evolving notion of law according to "the felt necessities of the time." A far cry from Scalia's normal position.


Posted by: bruce cunningham | Jun 29, 2015 9:39:05 AM

My husband is Edward A. Evans, he is in Butner NC prison I sent you his folder several months ago. I'm hoping you got a chance to go over it. He is charged for a couple bullets. And a empty baggie. Is this Johnson claim what he has been waiting on.

Posted by: Melinda Roller Evans | Jun 29, 2015 11:46:55 AM

I think it is ironic that, as Alito points out, the difficulties that the Court has had with the residual clause are of the Court's own making -- when it chose to employ the categorical approach. One other comment:

I think, professor, you exaggerate when it comes to the difficulty of applying Alito's suggested approach. It highly likely that most of the priors that will trigger enhanced punishment under the residual clause resulted from guilty pleas. The residual test will be relatively easy to apply because the record of the prior proceeding will be clear from the defendant's plea allocution. And the other issues you mention -- burden of proof, standard of proof -- these are things that courts of appeals decide all the time.

Posted by: Late Inning Relief | Jun 29, 2015 4:00:35 PM

LIR: How would a court respond if a defendant later said he felt coerced to confess to things that we not true in his prior plea allocation? Would that be sufficient to require judge/jury to look behind plea?

And how would common priors like drunk driving or statutory rape get resolved if "real-world conduct" as to prior conviction was the key to resolving ACCA application? Wouldn't a drunk driver's exact BAC level, existing weather conditions, traffic on road, time of travel, type of car and passenger realities all be critical to determining if a particular drunk driving prior created a "serious potential risk of physical injury"? What if friend of ACCA defendant submits statement that he remembers being a passanger in car when ACCA guy got pulled over for drunk driving years ago, but he felt very safe because ACCA guy was known to be a good safe driver even when really drunk. Would such a statement be sufficient to raise a reasonable doubt as to whether that long-ago drunk driving conviction created a "serious potential risk of physical injury"? Or could a repeat drunk driver with a long list of DUI convictions but no accidents point to that criminal history as proof that his DUI "real-world conduct" never created a "serious potential risk of physical injury"?

The issues potentially involved in unpacking sexual offenses years later could get even more inricate. Would testimony of prior statutory rape victim be critical to determining whether a consentual, but under age, sex encounter created a "serious potential risk of physical injury"? Could feds assert that any "real-world" unprotected sex creates a "serious potential risk of physical injury" based on STD transmission?

And remember through all this, (1) we would be looking at some real old priors, and (2) technically this would all be part of a sentencing hearing in which traditional constitutional trial rules and evidence rules may or may not not apply. In the end, a real-world approach to ACCA would be great for sentencing lawyers who want to be trial lawyers, but federal courts would likely be overwhelmed.

Posted by: Doug B. | Jun 29, 2015 7:13:08 PM

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