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September 24, 2015

"Johnson v. United States and the Future of the Void-for-Vagueness Doctrine"

The title of this post is the title of this notable new paper by Carissa Byrne Hessick now available on SSRN. Here is the abstract:

Last Term, in Johnson v. United States, the U.S. Supreme Court struck down a portion of the Armed Career Criminal Act as unconstitutionally vague.  The Johnson opinion is certain to have a large impact on federal criminal defendants charged with unlawfully possessing a firearm. But it is also likely to have other important consequences.  The language deemed vague in Johnson is similar or identical to language in the Federal Sentencing Guidelines and other statutes.  What is more, the Johnson opinion elaborates on the void-for-vagueness doctrine in important ways.  Those elaborations ought to make vagueness challenges easier to win in the future.

This Commentary examines the implications of Johnson.  It also briefly discusses Justice Thomas’s concurrence.  Justice Thomas refused to join the majority opinion, instead opting to decide the case in Johnson’s favor on statutory construction grounds. In addition to his statutory construction analysis, Justice Thomas questioned the constitutional basis of the void-for-vagueness doctrine.  Justice Thomas’s approach to the vagueness doctrine, if adopted by other members of the Court, could eviscerate the notice function of the doctrine.

September 24, 2015 at 08:43 AM | Permalink


Doug, I have maintained since Johnson came out that it is huge and could impact a wide variety of cases and "aggravating factors". Such as, in North Carolina, the victim is "very old" or the amount of money is "very large" or a killing is "especially heinous, atrocious and cruel." etc.

When one of those aggravators is the sole fact increasing the potential punishment above the Blakely maximum, then it is an element of a new, greater crime. Which I think heightens the scrutiny required for vagueness muster.

What I think is most significant about Johnson is that the majority resorted to a categorical approach, contrary to previous doctrine. In other words, there could still be some core conduct which everyone agree is not vague but the statute could still fall. That is what got Thomas upset.


Posted by: bruce cunningham | Sep 24, 2015 1:39:49 PM

Maybe I'm just feeling cranky, but why is this bare bones, rather obvious (to anyone who cares about the topic in the first place) summary of some questions raised by Johnson "notable," or for that matter something a law professor would write at all? She doesn't even bother to cite much of the case law that has come out since Johnson.

Posted by: Jay | Sep 24, 2015 6:04:50 PM

Jay, I think the response to your question is found in Justice Thomas' opinion, where he gets all bent out of shape with the majority's reliance on the categorical approach to vagueness challenges, which is a big deal.


Posted by: bruce cunningham | Sep 24, 2015 8:27:07 PM

Jay, I have two clients who "care" very much. Both are murder cases. In one the client was convicted of Second Degree Murder with the sole aggravator being, "the killing was especially heinous, atrocious or cruel" If that "fact" is too vague to operate as an element of Aggravated Second Degree Murder, then the potential sentence goes way down.

Or what if a defendant faces the possibility of a death sentence solely because of the allegation of "especially heinous, atrocious or cruel" killing? Under the categorical approach a strong argument exists that the def cannot face death, even if there are scenarios where anyone would agree the killing was especially heinous, atrocious or cruel.


Posted by: bruce cunningham | Sep 24, 2015 8:32:37 PM


You misunderstand my criticism. I'm not saying Johnson doesn't raise important questions (although I think the Court was pretty careful to distinguish the situations you seek to raise, where a description like "heinous, atrocious or cruel" is applied to conduct, as opposed to an abstract conviction, as the categorical approach requires). I just thought this 9-page essay or whatever didn't add much to the debate, and seemed like a weird thing for a law professor to post. The really tricky questions (about which there are already circuit splits) are about retroactivity and application to the guidelines. I also imagine some circuit, probably a panel of the 9th, will strike down the residual clause of 18 USC 16 sometime soon, which may lead to another SCOTUS case in a couple of years.

Posted by: Jay | Sep 24, 2015 9:35:19 PM

Also, as to Thomas, the essay says this: "Any assessment of the impact that Johnson will have on the void-for-vagueness doctrine would be incomplete without a discussion of Justice Thomas’s concurrence."

Huh? No court or party applying Johnson is likely to even cite Thomas's concurrence, because it was a solo concurrence by Justice Thomas that has no bearing at all on the holding or logic of the Court, and has essentially zero chance of being adopted by the Court anytime soon. So I would say it is quite possible to assess Johnson's impact without discussion the concurrence at all -- indeed, considering the concurrence is likely to incorrectly inform one's view of the impact Johnson may have. Maybe Thomas is, in an abstract sense, correct, and if a law professor wanted to do an extensive historical excavation to evaluate Thomas's theories that would be a respectable academic task. But I'm unsure who the audience is supposed to be for the dashed off couple of pages provided here.

(The answer, I'm 90% sure, is that professors are being encouraged to write this kind of thing in hopes of picking up cites on blogs, in briefs, and maybe even in a district court opinion somewhere. It just seems like a poor use of an academic's time to me.)

Posted by: Jay | Sep 24, 2015 9:52:47 PM

thank you for the discussion, Jay.

I think Thomas' opinion, and his railing against the extension of the vagueness jurisprudence to cover the possibility of a statute being categorically unconstitutional even though there are examples of scenarios which would not be vague, is support for the importance of the prevailing opinion.

Take a look at Justice Kennedy's question at page 26 of the transcript of the Johnson oral argument and you will see the importance of the article. Kennedy's question about whether there is a different vagueness standard for elements of crime and sentencing factors is huge, particularly when it comes to capital litigation.

For example, it lends understanding why in Louisiana "especially heinous atrocious or cruel" killing cannot be used as an Apprendi fact, or what Scalia calls in Brown v Saunders "an eligibility factor."

In North Carolina, especially heinous atrocious and cruel is often used as the sole aggravator convicting a def of capital murder and exposing him to death.

I think the article recognizes the potential for structural change in contexts other than the residual clause.

Posted by: bruce cunningham | Sep 24, 2015 10:10:20 PM


I see what you're saying. I wouldn't be surprised if your argument eventually prevails somewhere in the capital context, perhaps under a due process guise. I'm skeptical though, that it's going to benefit non-capital defendants trying to claim that various statutory descriptions of their conduct are unconstitutionally vague, given that the Court's opinion was pretty clear that the particular difficulty of applying the categorical approach in the abstract was what drove its opinion.

Posted by: Jay | Sep 25, 2015 2:29:57 PM

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