Nuances of Johnson Retroactivity Probed at SCOTUS

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By Jessica DaSilva

March 30 — Whether defendants seeking habeas relief are entitled to argue that their sentences are unconstitutional under Johnson v. United States was the subject of oral argument at the U.S. Supreme Court March 30.

Although the court ruled in Johnson (2015 BL 204915, U.S., No. 13-7120, 6/26/15), that the residual clause of the Armed Career Criminal Act is unconstitutionally vague, a split in the federal circuits arose as to whether that ruling was retroactive for collateral review. A ruling in Welch will mend that divide.

Justices attentively listened to arguments from the defendant's attorney and two lawyers from the U.S., asking few questions. The inquiries focused on the proper test to determine whether the ruling was substantive or procedural. If substantive, the ruling would apply retroactively to cases on collateral review.

‘Illogical' and ‘Arbitrary.'

Arguing for the defendant, Amir H. Ali, Washington, urged the court to adopt a test that focused on the effect that the ruling has on the class of defendants: In other words, would the defendants in question have received lower sentences without the existence of a now-unconstitutional law?

Declining to extend relief to habeas appeals would be “illogical” and “arbitrary,” Ali stressed.

Michael R. Dreeben, arguing for the Justice Department in support of the defendant, stressed that even if the court decided that Johnson was retroactive on collateral review, not all habeas appeals would qualify under that retroactivity. He used Gregory Welch's appeal as an example.

Dreeben said the U.S. Court of Appeals for the Eleventh Circuit merely dismissed the case under the notion that Johnson was not retroactive. However, he added that the court failed to address the underlying issue of whether Welch's Florida charge for “strong-armed robbery” qualified him as a violent felony offender eligible for the benefit of retroactivity.

Regardless, Dreeben stated that DOJ data suggested that defendants in prison under the unconstitutional mandatory minimum struck down in Johnson served an extra five years on their sentences.

Procedural or Substantive?

While the DOJ argued in favor of the defendant's test, the high court appointed a second attorney—Helgi C. Walker of Gibson, Dunn & Crutcher in Washington—to brief and argue the issue on behalf of the U.S.'s position in the lower court.

Walker argued the test on whether the ruling was procedural turned on whether it nullified the right of Congress to sentence a class of individuals. Because Congress could still pass a mandatory minimum law for violent felony offenders—albeit with more specific language—the ruling was procedural, she said.

During her argument, Walker received light questioning from a lukewarm bench that seemed more interested in listening to a carefully crafted and nuanced distinction.

“When the court says what a statute definitively means, it is making a judicial determination that the conduct at issue falls definitively outside the scope of the relevant statute,” she said. “Here, precisely because Johnson said that the clause was hopelessly indeterminant, we can't know with certainty that everybody's conduct fell outside the clause.”

Basically, past precedent regarding a substantive or procedural test focused on whether the statute in question unconstitutionally criminalized conduct “immune from punishment,” Walker summarized. Because Johnson did not rule on a certain behavior, it amounted to a procedural ruling.

Justice Stephen G. Breyer balked at the idea that defendants could be sitting in prison under a “non-existent” statute, but Walker addressed his concern.

She said the sentence is valid if the appellate courts properly affirmed the habeas defendants' sentences when the statute was still good law, adding that those asking for direct appeals would still have the opportunity to ask for relief under Johnson.

Breyer seized on that answer in Ali's rebuttal, asking him to address that point.

“It's not simply a procedure or some sort of rule governing how you reach that sentence,” Ali explained. “It's that rare circumstance in which an actual substantive criterion which qualifies someone or makes someone eligible for the punishment authorized, which leads to the circumstance which your honor described, which is that this person, the petitioner, is now spending time in prison that was not authorized by any valid act of Congress.”

To contact the reporter on this story: Jessica DaSilva at

To contact the editor responsible for this story: C. Reilly Larson at

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