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Antonin Scalia: An Unlikely Ally in the Fight Against Bad Sentencing Policy


The death of Justice Antonin Scalia sent shockwaves through the conservative movement, and everyone, regardless of their philosophic persuasion, is trying to figure out what the loss of this conservative icon means for the future of the Supreme Court and the Constitution. It is likely, however, that the answer will not come until November.

Scalia, of course, left his mark on the Court with his commitment to textualism and originalist interpretation of the Constitution, though there were occasional departures from his beliefs, such as his concurrence in Raich, which had the effect of expanding the Commerce Clause. His opinions and dissents were often filled with fiery originalist arguments and humorous prose. Some of his dissents in the most recent term were so memorable that the post-hardcore band Coheed and Cambria put them into song.

The conservative jurist was, perhaps counterintuitively, an ally when it came to certain aspects of federal sentencing policy. In a 2008 interview with the Associated Press, Scalia explained his views by pointing to his interpretation of the nation's founding document. "I ought to be the darling of the criminal defense bar because I have defended criminal defendants’ rights — because they’re there in the original Constitution — to a greater degree than most judges have," he said.

A great example is Scalia's 2010 dissent in cases involving the Armed Career Criminal Act (ACCA), a 1984 law aimed a recidivist violent offenders. The Court had received writs of certiorari to review the cases but declined to hear them. Each of the cases involved the vague language of the "residual clause" of ACCA, which partly defines a violent felony as an activity that "otherwise involves conduct that presents a serious potential risk of physical injury to another." ACCA allows prosecutors to seek sentencing enhancements for those within its reach.

Scalia did not hold back his contempt for ACCA in his dissent, arguing that the vague wording on of the residual clause failed to provide those subject to its sentencing enhancements. "Since our ACCA cases are incomprehensible to judges, the statute obviously does not give “person[s] of ordinary intelligence fair notice of its reach," he wrote. "I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation."

Scalia got his chance to strike down the residual clause of ACCA when Court revisited the law in October 2014 term. The case involved a twice-convicted violent felon, Samuel Johnson, who was arrested and convicted for possession of a short-barreled shotgun. For this, he was given a 15-year mandatory minimum sentence. Johnson argued that mere possession of the firearm should not be considered a violent offense under ACCA.

In June 2015, in Johnson v. United States, Scalia wrote the majority opinion that declared the vaguely worded clause unconstitutional because it violated due process. "We are convinced that the indeterminacy of the wideranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges," Scalia wrote. "Increasing a defendant’s sentence under the clause denies due process of law."

The Sentencing Reform and Corrections Act would make changes to ACCA that, as this author recently explained, would simultaneously make the dubious law both harsher and more reasonable. The language relating to ACCA would increase the maximum sentence for those with three prior convictions from 10 years to 15 years and reduce the minimum sentencing from 15 years to 10 years. It also makes the changes retroactive, though those who are eligible for reductions would be subject to requirements to ensure that they do not pose a danger to their communities.

Unfortunately, some are resorting to fearmongering rhetoric and demagoguery to keep what is left of ACCA in place. Now, it is impossible to say for sure that Scalia would have supported these changes to ACCA. But he did see the very real problems with the law and eventually acted to strike a major part of it down. Those who oppose the Sentencing Reform and Corrections Act would do well to view the changes it makes to federal sentencing policy with Scalia's objectivity and clarity.