The death by a thousand cuts of Johnson v. United States

This is the way the world will end. Not with a bang but with a series of dispiriting unpublished opinions. If you thought that Johnson would usher in a new era of sentencing jurisprudence based on close analysis of the remaining provisions of post-residual-clause sentencing statutes, you are now waking up to the dystopian reality suggested by today's opinion in United States v. Jackson. Jackson addresses whether a Georgia conviction for conspiracy to commit voluntary manslaughter is a violent felony under the Armed Career Criminal Act. You have already guessed the answer.

The Georgia voluntary manslaughter statute punishes murder when committed "as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." The first way you know that this case will not turn out well is when the conviction is for conspiracy to commit voluntary manslaughter, but the opinion does not discuss conspiracy. How could merely conspiring to do something ever have as an element the use, attempted use, or threatened use of force? The opinion has no intention of answering that question. (Come to think of it, how could you even conspire to commit a murder under a "sudden, violent, and irresistible passion"? The state of Georgia is going to have to answer that one.)

But even after the opinion dedicates itself to addressing a different crime than the one the defendant was convicted of, it finds ways to shoot down a few sacred cows of Johnson jurisprudence. It simply shrugs off the notion that you can easily kill someone in ways that do not involve "force" as defined by the Supreme Court, "like poisoning or laying a trap" or through "deceit or fraud," suggesting that this issue is already settled in the Sixth Circuit. The panel alights on United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), but it ignores cases like United States v. Jones, 673 F.3d 497 (6th Cir. 2012) (acknowledging that Tennessee attempt to commit second degree murder could not have an element of force because it "includes poisoning, which need not involve direct physical contact or force").

Even though Jackson was relegated to the unpublished opinions, defenders will need to sharpen their pencils and be prepared to distinguish this case -- and the inevitable bad cases to follow -- if they want Johnson to have any appreciable impact on clients.