Wednesday, November 15, 2017

Johnson is still dividing the Court

Much has changed since the Supreme Court issued its Johnson decision in June 2015, but one thing remains the same: we still have no comprehensive understanding of how the decision applies, and the law surrounding the Armed Career Criminal Act remains as murky as ever. Two decisions in the last week at the Sixth Circuit exemplify this murkiness, revealing stark divisions within the appeals court and unusual allegiances among the judges.

Perhaps most notably, last Friday's decision in United States v. Harper saw a panel of judges reluctantly following---then lambasting---the Court's out-of-the-blue Verwiebe decision, which had held that the Supreme Court's decision in Voisine negated a decade of ACCA jurisprudence prohibiting the use of reckless conduct as an ACCA predicate. In Harper, Judge Kethledge noted that the panel was bound by Judge Sutton's decision in Verwiebe, but then devoted the large majority of the Harper decision to "explain[ing] why, in our view, the decision in Verwiebe was mistaken." The fact that the panel chose to publish the Harper decision criticizing the (also published) Verwiebe decision may indicate that at least these three judges would be inclined to grant en banc review of Verwiebe.

We see this same inter-chambers conflict in a single decision in today's decision in Brian Williams v. United StatesThere, a three-judge panel managed to produce a majority opinion, a concurrence, and a dissent, all on the same subject as as Verweibe and Harper: what constitutes "violence." Specifically, the panel addressed Ohio's felonious assault statute, which potentially allows conviction "based on a showing of purely mental injury." In a 2012 published decision, the Court had determined that the statute did qualify as a violent felony; however, in a 2016 order, the Court granted Mr. Williams leave to file a second-or-successive petition because "much has changed in the four years" since the earlier decision, and ordered the district court to determine whether the statute was still categorically violent under the ample new precedent. The district court found no reason to upend the existing precedent. Neither did the Sixth Circuit. Judge Moore's majority opinion held that the question was "of little import here," because the prior precedent addressed the elements clause rather than the residual clause of the ACCA, and thus "the holding of Johnson [] is not implicated in this case." Judge Moore concurred, noting that she agreed that the panel was bound by prior published precedent, but arguing that the prior published precedent was wrong and should be reconsidered en banc.

Judge Merritt dissented, saying what we're all thinking at this point:

"Perhaps this confusion is not surprising because, as Justice Breyer said, the Armed Career Criminal Act creates a 'time-consuming legal tangle.' Justice Alito agreed and referred to the analytical process simply as a 'mess.'"

Whatever analytical "mess" these decisions point to, it is helpful to remind ourselves that there are very real consequences. In both cases, the individuals raising these arguments will spend many more years in prison as a result of these decisions.

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