The Armed Career Criminal Act of 1984 (“ACCA”) is the federal equivalent of the “three strikes” or “repeat offender” laws now in place in at least 28 states in this country. The ACCA was enacted during the Reagan administration which was aggressively involved in curbing what politicians and media pundits characterized as a “crime wave” gripping the country in the 1970s and 1980s. The law required that anyone who had three prior convictions for either “violent felonies” or “serious drug crimes” could face a minimum 15-year term to a maximum of life imprisonment if convicted under the law.


Residual Clause Unconstitutionally Vague


The ACCA defined a “violent felony” as any crime punishable by imprisonment for a term exceeding one year that: 1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or 2) is a burglary, arson, or extortion, involves the use of explosives, or other involves conduct that presents a serious potential risk of physical injury to another.


In the wake of the ACCA, the U.S. Sentencing Commission decided to insert itself into the political fray by enacting a number of guidelines designed to isolate recidivists and make sure they received longer, enhanced sentencing. Their misguided efforts accomplished nothing but a hugely overcrowded federal prison system.


Residual Clause Problematic


Both the ACCA’s definition of a “violent felony” and the Sentencing Commission’s definition of a “crime of violence” had one thing in common: they created a flood of litigation in the federal courts to determine exactly what satisfied either one or both of these definitions. The U.S. Supreme Court itself accepted seven cases over two decades in a convoluted effort to determine exactly what constituted a “a crime of violence” under these definitions.  Much of the litigation surrounded the meaning of the residual clause of the Act that included as a “violent felony any felony that “involves conduct that presents a serious potential risk of physical injury to another.”


The federal circuits were even worse in their efforts to accomplish the same thing. Often in direct conflict with each other, these courts in thousands of cases futilely tried, under the ACCA/Sentencing Commission definitions and an untold score of federal and state laws that set forth different parameters of what constitutes a violent crime, to establish some consensus and uniformity as to exactly what is a crime of violence.


After Scatter-Brained Attempts to Correct Court Strikes Down Residual Clause


Finally, in June 2015, the Supreme Court had enough.


In Johnson v. United States, the court struck down the so-called “three strikes” provision— known in legal circles as the “residual clause”—of the ACCA. Utilizing a long list of precedents dealing with the historical “vagueness doctrine,” the late Justice Antonin Scalia, writing for the five-justice majority, said the Court’s effort to apply the residual clause had been so scattered-brained as to leave only “guesswork and intuition” in its wake. The 15-page majority opinion concluded that the sentencing clause “fails to give ordinary people fair notice of the conduct it punishes, [and is] to standardless that it invites arbitrary enforcement.”


Although Court acknowledged that trying to understand the “three strikes” provision of the ACCA was a “failed enterprise,” the Johnson decision left a critical question unanswered: would the court’s ruling be applied retroactively to all those cases the federal circuits had gotten wrong in applying the provision with its indiscernible “violent felony” definition.


Johnson Rule Striking Down “Three Strikes” Rule Retroactive


The Court responded to this question on April 18 in Welch v. United States by holding that Johnson pronounced “a substantive new rule” of law and, therefore, was retroactive.


Citing its 1989 precedent in Teague v. Lane which held that new constitutional rules of criminal procedure do not apply retroactively, the Court said that “new substantive rules” do apply retroactively because they alter “the range of conduct or the class of persons that the law punishes.”


Justice Thomas Dissent Argues to Keep Unconstitutionally Sentenced People in Prison


Justice Thomas, in his usual loquacious and lonely dissenting manner, accused the majority—two of whom (Chief Justice Roberts and Justice Alito) generally join his conservative  constitutional perspective—of misconstruing the “retroactivity framework” of Teague; that the majority distorted the statutory rules governing a “certificate of appealability;” that they “bypass[ed]” what he considers to be established procedural rules that generally deny a prisoner of any post-conviction relief; and that the majority was inescapably mistaken in saying Johnson created a new “substantive rule” of law.


He also forcefully and repeatedly accused the majority of not adhering to prior precedents of the Court dealing with rules of retroactivity; and in so doing, they had created an “unprincipled expansion” of the Teague rule.


That’s pretty strong charges.


But, again, it was just another typical Thomas dissent. The Justice may not say much during oral arguments but he is known far and wide—and for very good reason—for his “come to Jesus” written dissents that inevitably makes one feel like they have wasted precious moments of their life reading them.