United States: Three Strikes Is Out

Last Updated: July 17 2015
Article by Kedar S. Bhatia and Shamoil T. Shipchandler

The finale of the latest Supreme Court Term featured a landmark ruling on same-sex marriage, narrow defenses of President Barack Obama's signature healthcare law and independent redistricting commissions, and a little case about a man caught in possession of a short-barreled shotgun. While the first three cases raise issues that have been hotly debated in cities across the country, few legal questions have appeared before the Justices so frequently in recent years as the one raised in the last case: whether certain criminal acts pose a "a serious potential risk of physical injury to another" and thereby count towards a federal three-strikes law. Resolving this question once-and-for-all, the Justices in Johnson v. United States threw up their hands and struck down the statute as void for vagueness.

Introduction

Over the past decade, the Supreme Court has heard case after case testing whether various crimes fall under the 18 U.S.C. § 924(e) three-strikes provision, which is part of the larger Armed Career Criminals Act. The three-strikes law calls for steep sentencing enhancements for federal defendants charged with their third violent felony. The Act provides certain crimes that qualify ­– such as arson, burglary, and extortion – and until recently, the Act had a residual clause to cover all conduct presenting "a serious potential risk of physical injury to another." But courts have had a heck of a time deciding what crimes are covered by the residual clause. As the Justices wrestled with the challenge of deciding which crimes fell under the residual clause, they began to question whether fault lay with the Court, for misunderstanding the law, or with Congress, for drafting a flawed statute. For example, in Begay v. United States, Justice Scalia questioned whether the enumerated offenses of arson, burglary, and extortion really had a common theme from which the Court could base the residual clause:

The phrase "shades of red," standing alone, does not generate confusion or unpredictability; but the phrase "fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red" assuredly does so.

Johnson was the fifth case in recent years in which the Supreme Court considered whether a prior conviction satisfied the residual clause, and six Justices ultimately voted to strike down the provision as unconstitutional rather than decipher again the discord between draftsmanship and congressional intent. Johnson again exposes concerns over prosecutors' discretion to seek harsh sentences for what the Justices consider to be relatively mild crimes, may have opened the door for challenging current three-strikes sentences and convictions under similarly worded criminal statutes.

Analysis

Johnson begins with the story of a strikingly unsympathetic plaintiff. In 2010, the FBI began to monitor Samuel Johnson, suspecting that he intended to commit acts of terrorism in support of a white supremacist organization. Johnson disclosed to undercover agents that he planned to attack the Mexican consulate in Minnesota, progressive bookstores, and liberals. After his arrest, Johnson pleaded guilty to being a felon in possession of a firearm and federal prosecutors sought an enhanced sentence under the Armed Career Criminal Act, relying in part on a past conviction in Minnesota for possessing a short-barreled shotgun. The district court agreed that possession of a short-barreled shotgun fell under the residual clause and sentenced Johnson to fifteen years in federal prison. The Supreme Court granted certiorari to determine whether a Minnesota conviction for possession of a short-barreled shotgun qualified as a violent felony under the Armed Career Criminal Act. Two months after the case was argued, the Supreme Court took the unusual step of placing the case back on the docket for oral argument and requested supplemental briefing on whether the statute was unconstitutionally vague.

In the majority opinion, Justice Scalia wrote that two features of the residual clause made it unconstitutionally vague. First, the clause provided no way to estimate the level of risk of physical harm posed by a crime. Second, even if judges could assign risk-levels to crimes, the clause left judges without a way to determine what level of risk was necessary for a crime to be a violent felony.

As evidence of the indeterminacy of the residual clause, Justice Scalia pointed to the Court's inability to come up with a principled standard for applying the clause. Even with a categorical approach, the Court resorted to ad hoc tests in three of its last four residual clause cases. And to determine whether possession of a short-barreled shotgun is a violent crime, judges must ascertain the effect of how remote the potential physical harm is from the criminal act. Should judges look at the risk that the shotgun will go off accidentally while possessed by the defendant? Or is the risk that the defendant will later use the gun to commit an undoubtedly violent crime? According to Justice Scalia, there was simply no way to know.

Johnson again highlights concern with the discretion afforded to prosecutors to seek harsh sentences. For example, in Yates v. United States, in which the Supreme Court balked at prosecutors' attempts to convict a fisherman under an anti-shredding provision of the Sarbanes-Oxley Act, Justice Scalia noted that the Justice Department's practice of seeking such high sentences could lead him to read criminal statutes more carefully in the future. Similarly, in Johnson, when prosecutors sought a significant sentence enhancement that caused the defendant's sentence to jump from no more than ten years to a fifteen-year minimum, Justice Ginsberg asked whether the Department of Justice provides written guidance to prosecutors regarding when to pursue enhanced sentences under the Armed Career Criminal Act. Chief Justice Roberts expressed concern that prosecutors can leverage harsh sentencing enhancements in plea-bargain negotiations, and that steep sentencing enhancements may cause criminal defendants to take plea deals rather than go to trial to litigate issues like the definition of the residual clause of the Armed Career Criminal Act.

The Johnson decision may ultimately stand as a textbook example of the interplay between Congress and the courts on important questions of criminal law. Congress passed the Armed Career Criminal Act as part of the Comprehensive Crime Control Act of 1984, with the goal of increasing sentences for repeat offenders. However, lengthy prison sentences are now under significantly more scrutiny as prison reform becomes a focus of this administration. While Congress may draft a new three-strikes provision that better captures violent offenses with specificity, it appears that the courts will not lose a moment's rest over seeing this residual clause laid to bed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions