The Supreme Court’s Missing Retro View
Nov. 25, 2015 (Mimesis Law) — I love 1957 Cadillac convertibles. My mother had one back in the day before our family went broke, and she succumbed to demon rum.
That got me thinking about retroactivity and Johnson v. United States. There, on June 26, 2015, the Court held that the “residual clause” of 18 U. S. C. §924(e) (2)(B)(ii) violated the Due Process clause because it was too vague. This provision of the Armed Career Criminal Act increased the defendant’s prison term to a minimum of 15 years and a maximum of life.
The “residual clause” reads like this:
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .
I would sure like to know whether the holding in Johnson is retroactive for purposes of collateral attack. The Supreme Court did not tell us.
As the Eighth Circuit said last Friday:
Every circuit confronted with the issue of whether the Supreme Court’s prior holdings have made Johnson retroactive for purposes of § 2255(h)(2) has taken a different approach. See Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) (holding Johnson announced a new substantive rule and prior Supreme Court holdings make it retroactive); In re Gieswein, 802 F.3d 1143, 1148–49 (10th Cir. 2015) (holding the Supreme Court has not held in a case or a combination of cases that the rule in Johnson is retroactive to cases on collateral review, and therefore it has not “made” Johnson retroactive); In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015) (holding Supreme Court “made” new substantive rules retroactive in Schriro v. Summerlin, 542 U.S. 348, 351 (2004), but finding Johnson did not announce a new substantive rule under Summerlin); Pakala v. United States, __ F.3d __, No.15-1799, 2015 WL 6158150, at *1 (1st Cir. Oct. 20, 2015) (per curiam) (noting the circuit split, declining to address the issue, and finding petitioner made prima facie showing of retroactivity where government conceded retroactivity).
Woods v. United States, No. 15- 3531, slip op. at p. 3 (8th Cir., November 20, 2015)
The Supreme Court almost never makes a ruling on questions that naturally follow from one of their decisions until and unless there is a second case that presents the derivative question. I understand the stuff about concrete cases and controversies and the related prudential concerns that are a part of the Supreme Court’s practice. That said, I have a modest proposal for federal criminal cases similar to Johnson; that is, for cases that may change the sentence length of a numerous federal offenders.
When the Supreme Court declares a federal criminal statute (or Guideline) unconstitutional that calls into question the length of sentences to be served by a significant number of federal inmates, the Court should, in the same case, decide the issue of retroactivity. There are various ways that this could be done that would assure the Court is well informed.
In situations like those raised in Johnson, offenders should not be asked to bear the sole risk of spending any more time in federal prison than absolutely necessary. The old (and frequently overused) saying that “Justice delayed is Justice denied” really does apply in circumstances like the one presented in Johnson.
Richard G. Kopf
Senior United States District Judge (NE)