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October 9, 2015

"The Supreme Court’s Johnson v. United States Ruling: A Vagueness Doctrine Revolution?"

The title of this post is the title of this helpful "Legal Backgrounder" coming from the Washington Legal Foundation and authored by David Debold and Rachel Mondl. Here are a couple of paragraphs from the start and end of the reader-friendly piece:

Apart from the direct effect of Johnson on ACCA sentences, the decision marks an important step in the Court’s vagueness jurisprudence.  Also not to be overlooked is Justice Thomas’s concurrence, which likened the vagueness doctrine to the much-maligned concept of substantive due process, thus raising questions about the legitimacy of a vagueness doctrine in the first place.  In the end, though, the debate over the legitimacy of substantive-due-process rights should have no bearing on the Court’s void-for-vagueness precedents, because vague laws offend traditional notions of procedural due process — that is, the process by which the government may deprive a person of life, liberty, or property....

More than an opinion on mandatory-minimum sentences, Johnson provides a welcome clarification of the law on unconstitutional vagueness.  Yet it remains to be seen how far-reaching the decision will be.  The majority opinion widens the opportunities for challenges to laws where previous challenges would not have been possible under a vague-in-all-applications regime.  Time will tell whether more of those challenges will succeed, or, instead, whether Johnson is relegated to “unique” status, its result ordained by the profound and repeated inability of the Supreme Court and courts of appeals to craft a principled, workable standard for applying a peculiar type ofstatute.  One thing is certain: Johnson will not be the last word on the vagueness doctrine.

October 9, 2015 at 10:13 AM | Permalink


Doug, as you know, I consider Johnson to be huge, particularly the use of a categorical approach to vagueness claims. North Carolina has lots of "aggravating factors" that are vague, like the victim was "very young" or "very old" what does that mean? Or the amount of money taken was "large" huh?

And, if there is only one aggravator present and it increases potential punishment, under Apprendi/Blakely/Alleyene it is an element of a crime.

So, we have a crime for Larceny from a Very Old Person. ??

Posted by: bruce cunningham | Oct 9, 2015 10:40:38 AM

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