On Monday April 18th, 2016, less than three weeks after the case was argued, the Supreme Court handed down its opinion in Welch v. United States, and held that last year’s decision in Johnson v. United States, 576 U.S. ___(2015), striking down portions of the Armed Career Criminal Act as unconstitutionally vague, would apply retroactively, making relief available to defendants whose cases were final before Johnson was decided. The Welch decision will have ramifications far beyond the named defendant’s case, if it turns out that the Court is truly refining its retroactivity jurisprudence.
To understand Welch, we first need to understand a little about Johnson, the case that changed the underlying law. Last June the Court ruled that a defendant may not have his sentence increased from ten years or less in prison, to at least fifteen years, under the “residual clause” of the Armed Career Criminal Act, because that clause was “unconstitutionally vague.” It was clear that the residual clause enhancement could not be enforced going forward. Petitioner Welch, who had been sentenced before Johnson was decided, raised the question of whether the new rule was retroactive, and therefore could be challenged on appeal in successive petitions for a writ of habeas corpus.
Retroactivity review on appeal has been at best complicated and difficult to parse under the Court’s existing precedent. The Welch decision turns on whether the new rule was substantive or procedural. As a general matter, procedural rules are not retroactive, substantive rules are.
The Court cited its Teague v. Lane line of cases, particularly the 2004 decision in Schriro v. Summerlin, 542 U.S. 348, 351 (2004) that substantive rules apply retroactively, and defining a rule as substantive “if it alters the range of conduct or the class of persons that the law punishes.” Schriro, 543 U.S., at 353. “This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish.” Id. at 351-352.
The seemingly simple rule after Welch is that watershed cases of criminal procedure will be retroactively applicable, as will all cases where the primary conduct has been found not to be have been properly criminalized by a statute, either as a result of a constitutional decision protecting primary conduct, or as the result of narrowing construction. Welch may open the doors for a significant new range of habeas cases. However, it may not be quite so broad. Justice Kennedy noted that both sides assumed that the Teague framework properly applied to this case and the Court did not engage in an extensive analysis. Principles of federalism and comity may re-emerge as the lower court decide whether to extend the reasoning in Welch to cases involving state law.
Justice Thomas, the lone dissenter, argued that the Court had expanded retroactivcity beyond any previously recognized bounds. “Bousley extended retroactive relief for federal prisoners raising statutory claims, not just constitutional ones. … Montgomery extended Teague to state postconviction proceedings, enshrined Teague as a constitutional command, and redefined substantive rules to include rules that require sentencers to follow certain procedures in punishing juveniles. Now the majority collapses Teague’s substantive-procedural distinction further, allowing any rule that has the incidental effect of invalidating substantive provisions of a criminal statute to become a substantive rule.”
If Justice Thomas is correct, the effect of Welch, a federal case, on cases deemed final in state courts may be significant. Arguments based on a combination of the principles stated in Johnson and Welch involving statutes other than the Armed Career Criminal Act are surely wending their way to the courts as this is being written.
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