Armed Career Criminals: Is the holding that the “residual clause” of the Armed Career Criminal Act was unconstitutional retroactive?

March 29, 2016

Supreme Court BuildingFederal law forbids certain people from shipping, possessing, or receiving any firearm or ammunition, and violators face up to 10 years’ maximum imprisonment.  However, under the Armed Career Criminal Act (ACCA), if the violator has three previous convictions for a violent felony or a serious drug offense, or both, the imprisonment time for the violator is increased to a minimum of 15 years to life in prison.  “Violent felony” is defined by the ACCA to include enumerated offenses, such as burglary, arson, extortion, or the use of explosives.

The definition of violent felony also contains a “residual clause”, which says that the ACCA applies to any crime punishable for a term exceeding one year that “otherwise involves conduct that presents a serious potential risk of physical injury to another”.  In Johnson v. U.S., 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), the Supreme Court held that imposing an increased sentence under this residual clause, 18 U.S.C.A. § 924(e)(2)(B), violates the Constitution’s guarantee of due process.

JohnsonQuoteLeft undecided was whether the Johnson ruling is retroactive; that is,  whether that ruling should be applied to federal cases on collateral review, even though the cases were “final” before Johnson was decided. In Welch v. United States, 15-6418, the Supreme Court will hear oral argument March 30, 2016 to determine the retroactivity issue.

While all courts deciding the issue have held that the Supreme Court issued a new rule of constitutional law in Johnson, the courts differ as to whether the rule is substantive and if it is retroactive.  Courts have held that the new rule set forth in Johnson is a new substantive rule of constitutional law and that the Supreme Court made the rule retroactive to cases on collateral review .  Other courts have held that, while the new rule in Johnson is substantive, the rule was not made retroactive to cases on collateral review by the Supreme Court.  Still other courts have determined that the new rule in Johnson is not a substantive rule and was not made retroactive to cases on collateral review by the Supreme Court.

For more information about the Johnson line of cases, see Retroactive Effect of Johnson v. U.S., 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), Holding that “Residual Clause” of Armed Career Criminal Act (ACCA) is Unconstitutional, 13 A.L.R. Fed. Art. 3.