A Circuit Court Update
The U.S. Supreme Court may be on summer recess, but the lower courts continue to hear cases and issue rulings. Three rulings this week from the Fourth, Fifth, and Seventh Circuits are worth noting.
First, the Fifth Circuit ruled Wednesday that SB 14, Texas’ voter-ID law, violated the federal Voting Rights Act of 1965. My colleague David Graham has a full write-up on the Texas ruling, a similar case in North Carolina, and the Voting Rights Act’s future. Last term, for example, the Supreme Court declined to hear a Seventh Circuit decision upholding Wisconsin’s voter-ID law.
Also on Wednesday, the Fourth Circuit handed a major ruling on warrantless-cell-phone tracking. In United States v. Graham, a three-judge panel ruled 2-1 that the federal government violated the defendant’s Fourth Amendment rights by obtaining his cell-phone location data without a warrant. It’s a major ruling, and my colleague Robinson Meyer will have more details on it soon. Graham adds to an already-tangled thicket of circuit-court opinions on how to apply the Fourth Amendment to cell-phone tracking. The likelihood is high that the Supreme Court will hear a case on the issue in the next few years.
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The third case doesn’t invoke a circuit split (yet), but it does contain a major interpretation of a recent Supreme Court case, Johnson v. United States. If you haven’t heard of Johnson, there’s a good reason: The Court published it the same day as Obergefell v. Hodges, the same-sex marriage case. Johnson may not have been the culmination of a 40-year movement for human equality, but its impact is still significant.
In Johnson, an 8-1 majority of the Court struck down the residual clause of the Armed Career Criminal Act as unconstitutionally vague. Congress passed the ACCA in 1984 to impose longer sentences on convicted felons if they had previously been convicted three or more times of certain crimes. The Act spelled out some of the crimes that would count and included a residual clause for other crimes that might apply. Under that clause, if a defendant had multiple previous convictions for crimes that “[involve] conduct that presents a serious potential risk of physical injury to another,” judges could add additional years in prison to the sentence, up to and including life imprisonment.
Which crimes indicate a “serious potential risk” of future violence? Lower courts struggled to find a coherent or empirical method to measure it. “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” asked Judge Alex Kozinski of the Ninth Circuit in a 2009 case. Some arbitrariness is inevitable in the criminal-justice system, but the whims of a judge’s interpretation here could add decades of imprisonment. A kaleidoscope of interpretations sprung forth throughout the country. The Supreme Court heard four cases on the clause’s meaning within the last decade.
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In June, the Court threw in the towel and ruled the residual clause was so vague and arbitrary it violated Johnson’s Fifth Amendment right to due process. The decision benefits Johnson, whose case was remanded to the lower courts for further hearing and possible resentencing. It will also benefit future defendants whose sentences could have otherwise been extended. In one jurisdiction, the decision now benefits current inmates, too. On Tuesday, a Seventh Circuit panel ruled in Price v. United States that a defendant sentenced under the ACCA could now file a petition for resentencing based on Johnson.
It’s important to note that retroactivity is not the norm; new constitutional rules of criminal procedure typically aren’t applied to cases that have already become final. But a Supreme Court ruling can be applied to resolved cases if the Court creates a new substantive rule. In Price, the Seventh Circuit panel concluded that the Supreme Court did exactly that in Johnson.
In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited “a certain category of punishment for a class of defendants because of their status.” A defendant who was sentenced under the residual clause necessarily bears a significant risk of facing “a punishment that the law cannot impose upon him.” There is no escaping the logical conclusion that the Court itself has made Johnson categorically retroactive to cases on collateral review. (citations omitted)
The panel’s interpretation only counts as binding legal precedent for federal cases in its jurisdiction, namely Illinois, Indiana, and Wisconsin. But judges in other federal appeals courts could borrow its reasoning for cases throughout the country. If they do, how many prisoners could ultimately be resentenced as a result of Johnson? No definitive numbers exist, but Ohio State University law professor Douglas Berman estimates as many as 7,000 federal prisoners are serving sentences under the ACCA. That could mean hundreds of inmates are eligible for resentencing nationwide, depending on whether or not the residual clause was part of their original sentences.
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This article was originally published on The Atlantic.
