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SCOTUS holds ACCA residual clause unconstitutional

Perhaps lost in the celebration of today's victory for marriage equality is a decision of monumental importance to federal criminal defense practitioners. Today, in Johnson v. United States, the United States Supreme Court invalidated the "residual clause" of the Armed Career Criminal Act.

Under the Armed Career Criminal Act - and the similar Career Offender statutes - persons with certain prior convictions for "violent felonies" and/or "serious drug offenses" faced greatly enhanced penalties when convicted of additional like crimes.

The Armed Career Criminal Act defines a violent felony in three alternative ways, as any crime punishable by a prison term exceeding one year that:

a) Has as an element the use, attempted use, or threatened use of physical force against the person of another, or

b) Is burglary, arson, or extortion, involves the use of explosives, or

c) Otherwise involves conduct that presents a serious potential risk of physical injury to another.

At issue in Johnson was the application of the clause "Otherwise involves conduct that presents a serious potential risk of physical injury to another." Federal courts throughout the nation have struggled with this clause since its inception. The Supreme Court itself had been called on to interpret it on new fewer than four prior occasions.

Application of this residual clause required courts to examine facts surrounding the conviction that were neither elements of the offense nor were necessarily found beyond a reasonable doubt by a jury. In essence courts were to determine whether a "judicially imagined ordinary case" involved a serious potential risk of physical injury and then to make a qualitative judgment regarding whether the presence of any such risk was "serious" enough to trigger application of the clause. The wide ranging nature of this inquiry proved fatal. The court found that this indeterminacy invited arbitrary application and thus violated notions of due process.

Two important issues surface immediately as a result of this sea change in our practice. First: does the ruling apply retroactively? What of all those previously sentenced as Armed Career Criminals under the residual clause? Secondly, will the ruling apply to the related Career Offender statute? While application of the Armed Career Criminal Act results in a mandatory minimum sentence of 15 years, application of the Career Offender statute enhances a defendant's sentence by raising the applicable federal sentencing guidelines range in a qualifying case. Application of these guidelines themselves are not mandatory.

One thing is certain to result from this monumental decision: Many years of contentious litgation.

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