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Court to decide Johnson retroactivity

Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States.  A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.

Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release.   The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.

The new case is Welch v. United States; it will be argued in March.

Gregory Welch of southern Florida was sentenced to fifteen years in prison after being convicted under a federal law that the Court struck down in the Johnson case as too vague.  That provision is the so-called “residual clause” in the Armed Career Criminal Act.  The Act enhances a sentence for illegal possession of a gun by a felon from the ordinary maximum of ten years to a minimum of fifteen years if the individual had previously been convicted of three violent crimes or serious drug crimes.

Welch had pleaded guilty to the gun possession charge, on condition that he be allowed to challenge the use of one of his prior convictions as a basis for increasing his sentence.  After the Johnson ruling came out late last June, he sought to reopen his sentence but failed in district court, and the U.S. Court of Appeals for the Eleventh Circuit refused to grant permission for him to appeal.

He then took his case on to the Supreme Court, as did lawyers for at least a half-dozen other inmates seeking to take advantage of the Johnson ruling.   The federal government last month picked out one of those cases as a proper one for the Court to consider, but the Court did not choose that one.  Instead, it chose Welch’s petition — apparently because it was not complicated by rules barring multiple habeas petitions and had resulted in a final ruling at the appeals court level.

Although the Justice Department had originally opposed review by the Supreme Court of Welch’s case, although it suggested he should be allowed to raise the question in lower courts, Welch’s lawyers filed a new brief after the Justice Department took the position in the other case that the rule of the Johnson decision was a new “substantive” rule of law and, as such, should apply to cases that had been closed before the date of that decision.

With the Justice Department on Welch’s side on the retroactivity question, the Court presumably will enlist an independent lawyer to join in the case to argue against retroactivity, to balance out its review.

The Court apparently has planned to hear the case in March, as the Justices sought to fill that month’s oral argument schedule. Any cases that are newly granted in the next week or two are likely to be heard in April — the last month of the Term for scheduling arguments.

Among the cases that the Court is scheduled to consider next week whether to review is the federal government’s petition defending President Obama’s broad new program to defer the deportation of more than four million undocumented immigrants.  That policy, announced more than thirteen months ago, has been put on hold by lower courts.

Recommended Citation: Lyle Denniston, Court to decide Johnson retroactivity, SCOTUSblog (Jan. 8, 2016, 3:00 PM),