Johnson means that there are prisoners who have received a sentence that exceeds the statutory maximum for their offense. Johnson is also retroactive. In fact, it’s so clearly retroactive the United States is conceding that it is. But the courts of appeals disagree about whether the Supreme Court has “made” it retroactive.
Casetext contributor Leah Litman, a former clerk for Justice Kennedy and a fellow at Harvard Law School, has written several authoritative pieces for Casetext highlighting the consequences of the Johnson decision. In “Circuit Splits and Original Writs“, she documented the Circuit split and explained the central problem bedeviling the federal courts:
In December, Leah’s Casetext piece was cited in a brief to the Court requesting consideration of the retroactivity issue. Last Wednesday she explained how high the stakes are. On Friday, the Court granted cert in Welch v. United States, in which it is asked to address the circuit split on Johnson retroactivity.
For more on Johnson, SCOTUS, and other criminal law news and analysis, visit Casetext’s Criminal Law community.