What Does It Matter if a White Supremacist Gets Too Much Time Behind Bars?

A Supreme Court decision on the Armed Career Criminal Act could shorten sentences for hundreds of prisoners

National Socialist Movement member Samuel Johnson, an organizer of illegal immigration rally in 2010 at the Veteran's Memorial in Austin, Minnesota, shouts at pro immigration protesters.

National Socialist Movement member Samuel Johnson, an organizer of illegal immigration rally in 2010 at the Veteran's Memorial in Austin, Minnesota, shouts at pro immigration protesters.

Source: Austin Daily Herald via Bloomberg

Samuel James Johnson is not a sympathetic defendant. But his case, argued before the U.S. Supreme Court today, could shorten sentences for hundreds, or even thousands, of prisoners. At the core of Johnson v. United States are years of criminal behavior, a gun charge, and a controversial law.

Johnson, 34, is a white supremacist who started the Aryan Liberation Movement after he decided that Minnesota’s National Socialist Movement wasn’t “extreme enough,” according to the Minneapolis Star Tribune. In e-mails to an informant and an undercover officer in 2010, he admitted planning to produce counterfeit currency and napalm for his new movement. He showed an AK-47 to the informant.

Johnson was already a multiple felon, so just having the AK-47 was enough to get him arrested in April 2012. He was charged with being a criminal in possession of a firearm and pleaded guilty. That plea deal should have resulted in a maximum sentence of 10 years in prison.

But because of his criminal history, which included two prior convictions related to robbery and a third for possession of a shortened shotgun, a federal district court judge found that Johnson qualified to be sentenced under the Armed Career Criminal Act. Passed by Congress in 1984, the ACCA is a kind of “four strikes” rule, an act that “enhances” sentences for violent offenders. If a defendant has been convicted of three violent crimes, any additional felony conviction under the ACCA requires at least 15 years behind bars.

According to the ACCA, a violent felony involves either “physical force” against another person; “burglary, arson, or extortion” or “the use of explosives”; or “conduct that presents a serious potential risk of physical injury to another.” In Johnson’s case, the district court determined in September 2012 that all three of his prior crimes were violent—the two robberies and possession of the shotgun. Having the shotgun fit into the “serious potential risk” category, known as the ACCA’s “residual clause,” the court determined.

Johnson appealed the decision twice and lost twice. Then, last year, the Supreme Court decided to hear his case. In November, justices heard arguments about whether Johnson’s shortened-shotgun conviction qualified as a violent felony. In January, it asked for a re-argument. This time the court wanted the arguments to focus on whether the ACCA’s residual clause is unconstitutionally vague. That’s what the court heard today.

The hour-long session suggested that several members of the court are ready to declare the residual clause so vague as to be unconstitutional. Chief Justice John Roberts worried aloud that the clause's ambiguity gives prosecutors too much power to force defendants into a plea agreement. Justice Elena Kagan wondered if the court shouldn't leave it to Congress to specify which crimes are covered. Another justice, Antonin Scalia, said in 2011 that he would strike down the provision as being too vague. 

Johnson v. U.S. will be the fifth time in eight years that the court has addressed the residual clause. Other cases have involved other parts of the ACCA.  

But considering Johnson’s history, and the kind of criminal defendants likely to be swept up in the ACCA, why should anyone care?

Johnson's fate is linked with the troubling issues of mass incarceration and prison spending as much as it is with simple fairness in sentencing. Nearly 600 people a year have their felony sentences increased to the ACCA’s 15-year mandatory minimum, according to the U.S. Sentencing Commission. A paper published April 16 by Harvard law professor Leah Litman argues that a Supreme Court finding of unconstitutional vagueness in the ACCA could affect 900 prison sentences—"the 600 sentenced this past year, plus the 300 sentenced in the latter half of the previous year," Litman writes. The ACCA added years to each of those sentences, and it costs about $26,000 a year to incarcerate someone in federal prison. And if the Supreme Court finds for Johnson, the decision might be retroactive.

Certainly Congress isn't likely to jump in and change the ACCA’s language.

“By definition, the only people that this legal fight concerns are people with long criminal histories,” said Douglas Berman, a professor at Ohio State University's Moritz College of Law in Columbus who specializes in sentencing issues. “And the issue is not, ‘Do they have a long criminal history?’ That’s a given. The issue is, ‘Do they have the wrong kind of long criminal history?’ And that’s itself why Congress hasn’t bothered to fix this.”

So it falls to the Supreme Court to determine what will happen to the residual clause—and, with it, the ACCA itself.

“The argument for striking down this law as vague is that it is unclear about which predicate offenses trigger the mandatory minimum," said William W. Berry III, a professor at the University of Mississippi School of Law who specializes in capital punishment, sentencing, and criminal law. “The court has been really hesitant to find the statute unconstitutionally vague" in the past, "instead choosing to interpret the confusing statutory language in creative ways. An alternative in this case might be the court [rewriting] the statute rather than finding it unconstitutional."

—With assistance from Greg Stohr

(Corrects sentence about what aspects of the ACCA the Supreme Court has considered in recent years and updates to reflect today's hearing, and corrects photo caption to Austin, Minnesota, from Austin, Texas.)

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