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Limit to Federal 3-Strikes Law Is Fully Retroactive, SCOTUS Rules

By Casey C. Sullivan, Esq. | Last updated on

Last June, the Supreme Court struck down the Armed Career Criminal Act's so-called residual clause. Under the ACCA, which is the federal "three strikes" law, certain violent offenders are subject to mandatory minimum sentences if they've been thrice convicted of specific crimes, or any crime involving "a serious potential risk of physical injury to another." That residual clause, quoted above, was unconstitutionally vague, the Court ruled in Johnson v. United States.

But an open question remained: what happens to those who had already been sentenced under the ACCA's residual clause, pre-Johnson? Now, that question has been answered. On Monday, in a 7-1 opinion, the Supreme Court announced that Johnson has fully retroactive effect in cases on collateral review.

Good Riddance Residual Clause

The Armed Career Criminal Act's residual clause posed some serious difficulties for courts and career criminals. After all, it can be hard to determine just what counts as a crime that involves "serious potential risk of physical injury." In Johnson, for example, the career criminal, an unsympathetic white supremacist, was sentenced after being caught possessing a sawed-off shot gun. Was that a crime of violence? It depended on the circuit.

That ambiguity, the Supreme Court ruled, was so great that it violated due process, failing to give adequate guidance to both offenders and the courts.

A Substantive Rule, Even If Based on Procedural Due Process

Yesterday, in Welch v. United States, the Court extended the reach of that ruling. Johnson, the Court held, "announced a new substantive rule that has retroactive effect in cases on collateral review."

In so ruling, the Court rejected arguments that Johnson was a procedural decision. The Court-appointed amicus attorney, Helgi Walker, had contended that the void-for-vagueness doctrine upon which Johnson was decided went to procedural due process, making Johnson itself a procedural decision.

Under Teague v. Lane, only substantive rules of criminal law have retroactive effect. But, the Court explained in an opinion authored by Justice Kennedy, it is not the underlying constitutional source that determines if a ruling is substantive, it is the function of the new rule itself. Since Johnson "alters the range of conduct or the class of persons the law punishes," it's a substantive rule.

Opening the Floodgates?

The sole dissent came from Justice Thomas, who argued that, under Welch, "every case invalidating a statute or sentence establishes a 'new rule,'" and could thus be taken ipso facto as a substantive decision. Not so, the majority countered. If a procedural statute is struck down, such as "as statute regulating the types of evidence that can be presented at trial," there would be no retroactive effect.

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