- Judge Stephen Higginson, U.S. Court of Appeals, 5th Circuit
On Wednesday, April 29, the Supreme Court will hear oral arguments in Glossip v. Gross. The case turns on the efficacy of the first drug in Oklahoma’s three-drug execution protocol, the subject of controversy after a highly publicized botched execution last year; critics claim that this drug is unable to reliably produce the deep, coma-like unconsciousness necessary to avoid the pain and suffering that can result from the administration of the second and third drugs, and that the protocol violates the Eighth Amendment because of this. Oral arguments are expected to be revealing as to whether the court will focus narrowly on the specific execution method in question or range more broadly over important constitutional issues related to the death penalty.
On April 20, 2015, the Supreme Court heard oral argument in Johnson v. United States. This case concerns two questions. The first is whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. The second question asks whether the residual clause in the Armed Career Criminal Act, which mandates that a minimum sentence of fifteen years be imposed upon someone who unlawfully possesses a firearm and has had three prior "violent felony" convictions--with the phrase “violent felony” including any crime that “involves conduct that presents a serious potential risk of physical injury to another”--is unconstitutionally vague.
To discuss the case, we have Richard Myers who is the Henry Brandis Distinguished Professor of Law at the University of North Carolina School of Law.
The “residual clause” of the Armed Career Criminal Act requires a mandatory minimum fifteen-year sentence for anyone who has three prior “violent felony” convictions and is found to unlawfully possess a firearm. This clause has been addressed at the Supreme Court on numerous occasions in recent years, with Justice Scalia suggesting that it is unconstitutionally vague. The Supreme Court heard oral arguments in Johnson v. United States in November with no mention of the question, and after two months of silence re-scheduled the case for additional argument and instructed the parties to address this question directly. Many Court-watchers have suggested that there may now be five votes on the Court to declare the residual clause unconstitutionally vague.
Senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, Ilya Shapiro explains the confusion concerning what constitutes a violent felony conviction under the residual clause of the Armed Career Criminal Act. In this upcoming Supreme Court case, Petitioner Johnson claims the ACCA is unconstitutionally vague while the government asserts that Johnson’s conviction for possession of a short-barreled shotgun satisfies the violent felony requirement of the statute.
Ilya Shapiro is co-counsel on the amicus brief for the National Association of Criminal Defense Lawyers, National Association of Federal Defenders, Families against Mandatory Minimums and the Cato Institute in support of the Petitioner.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.