With Sotomayor Dissent, Specter of ‘Johnson’ Still Hangs Over SCOTUS

2015 case likely to reappear in court's jurisprudence

Sonia Sotomayor / Getty Images


The Supreme Court's refusal to take up several cases Monday and a concurrent dissent from this refusal by Justice Sonia Sotomayor highlight the ongoing effects of a 2015 case on the Court’s criminal jurisprudence.

Sotomayor, with whom Justice Ruth Bader Ginsburg concurred, publicly disagreed with the majority of the Court's refusal to hear the case of Thilo Brown, who sought relief from his mandatory sentence under now-neutered sentencing guidelines determining him to be a "career offender."

At the center of Sotomayor's dissent from denial is the 2015 case Johnson v. United States. That case concerned a federal law called the Armed Career Criminals Act (ACCA), which introduced mandatory minimums for federal offenders who had previously committed three or more "violent felonies."

The problem with this rule, the Court found in an 8-1 ruling authored by then-Justice Antonin Scalia, was that the statutory definition of "crimes of violence" was so broad and inclusive as to be unconstitutionally vague. Prior interpretation of the statute had found that any crime could be determined to involve violence if in the ill-defined "ordinary case" of the crime there was "substantial risk" of the use of force. This included plaintiff Johnson’s two counts of "simple robbery," even though he engaged in no violence during either crime.

This highly technical ruling had an outsized impact, reverberating through the federal criminal justice system. Attorney General Jeff Sessions, who multiple times has called the ruling "devastating for Americans," has said that more than 1,400 federal prisoners were released early thanks to sentence reductions required under Johnson.

Within the federal courts themselves, meanwhile, Johnson continues to make conspicuous appearances in follow-up litigation. In April, a controversial immigration case saw newly appointed Justice Neil Gorsuch join the Court's liberal wing to rule that the vagueness analysis in Johnson applied also to rules governing the deportation of an immigrant—James Dimaya was convicted of a crime that passed the Johnson violent crime standard despite not actually being violent. And last week, Justice Brett Kavanaugh's first-ever question at oral arguments was about Johnson, as the Court tried to tease out the "royal mess" of the ACCA in United States v. Stitt.

All of this is part of what makes the Court's denial of cert in Brown, and Sotomayor's dissent significant. Thilo Brown was sentenced under language in the U.S. Sentencing Guidelines, which repeated the definition of a crime of violence the Court had already found unconstitutionally vague in Johnson and Dimaya.

Brown and similar defendants "were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision," Sotomayor wrote. "These petitioners argue that their sentences, too, are unconstitutional. This important question, which has generated divergence among the lower courts, calls out for an answer."

As sentencing scholar Douglas A. Berman noted, the Supreme Court had previously relisted a bevy of cases concerned with implications of Johnson for sentences like Brown's. The choice to not take up another Johnson-related case indicates additional contours to the Court's attempts to cope with the impact of the law on the federal carceral system.

While they may not be willing to consider Johnson's application to the ever-thorny federal sentencing guidelines, SCOTUS will doubtless revisit the 2015 case in some other context in the near future.

"You're not exactly on a winning streak here in ACCA cases," Justice Samuel Alito told the federal government's lawyer in Stitt oral arguments last week. "You might have gotten a hint that a majority of the Court really hates ACCA and is picking it apart bit by bit by bit."

This picking apart has already prompted some response in Congress—in August, senators Orrin Hatch (R., Utah) and Tom Cotton (R., Ark.) introduced the "Restoring the Armed Career Criminal Act" to fix the voided section of the law.

Charles Fain Lehman

Charles Fain Lehman   Email Charles | Full Bio | RSS
Charles Fain Lehman is a staff writer for the Washington Free Beacon. He writes about policy, covering crime, law, drugs, immigration, and social issues. Reach him on twitter (@CharlesFLehman) or by email at lehman@freebeacon.com.

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