Associate Federal Defender Shelley Fite has kindly agreed to provide her take on the high court’s latest:
Federal defenders and procedure wonks naturally appreciate Welch v. United States, in which the (7–1) Supreme Court held that Johnson v. United States, 135 S. Ct. 2551 (2015), applies retroactively to cases on collateral review. But (read on!) the case does have some application for state practitioners—at least those who do post-conviction work.
Two foundational points: First, Johnson struck down as unconstitutionally vague a portion of the Armed Career Criminal Act, a three-strikes type of statute that increases the maximum sentence for certain federal firearms offenses from zero–to–ten years to fifteen years–to–life. Second, in the federal courts, a new rule of criminal law is retroactive to cases on collateral review, i.e. cases beyond direct appeal, only if it is “substantive” or if is a “watershed rule of criminal procedure.” Teague v. Lane, 489 U.S. 288 (1989). A substantive rule is one that “alters the range of conduct or the class of persons that the law punishes.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). Watershed procedural rules “implicat[e] the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U. S. 484, 495 (1990). (Note that watershed procedural rules are sort of like life on other planets: possible in theory but thus far undiscovered.)
In Welch, the government conceded that Johnson was substantive and thus retroactive. And Johnson’s new rule certainly seems retroactive: a prisoner who was wrongly deemed an “armed career criminal” is necessarily serving a punishment that the law no longer allows—at a minimum, his sentence must be reduced from 15 to 10 years. The Supreme Court agreed. In fact, the Court treated the case as an easy one—it issued its opinion just weeks after oral argument. It found that Johnson clearly wasn’t procedural: “Johnson had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Armed Career Criminal Act.” (Slip opinion at 9). Rather: “After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.” (Id.).
The Court had appointed a third attorney to concoct an argument against retroactivity, but she convinced just one justice: Thomas. The opposing argument was that a rule is substantive only if it is based on a substantive constitutional provision—like the Eighth Amendment—and not if it is based on a due process ruling with substantive effect. The appointed attorney also argued that substantive rules bar altogether the criminalization of certain conduct, and that a rule striking down a law merely because it was poorly (vaguely) drafted doesn’t cut it. In rejecting these arguments, the Court emphasized that the federal retroactivity rules are designed to “create a balance between, first, the need for finality in criminal cases, and second, the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law.” (Slip opinion at 10).
Welch’s precise holding is minimally relevant even for federal practitioners in the Seventh Circuit, which has already held Johnson’s new rule retroactively applicable. Price v. United States, 795 F.3d 731 (7th Cir. 2015). But the opinion is useful to both federal and state practitioners who handle collateral cases, and therefore have to deal with retroactivity. In Wisconsin, as in most states, the courts’ analysis of whether a federal or state case has retroactive application tracks the federal framework. State v. Lagundoye, 2004 WI 4, ¶14, 268 Wis. 2d 77, 674 N.W.2d 526. Welch provides a nice, succinct explanation of the distinction between substantive and procedural rules—and, importantly, the policy interests underlying retroactivity—that can provide fodder for future retroactivity arguments.