The legal philosopher Lon Fuller once invented an earnest monarch named Rex who discovered many wrong ways to make law. First, Rex wrote a detailed code of laws, but, to avoid confusing the public, kept it secret. “To Rex’s surprise this sensible plan was deeply resented by his subjects. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were,” Fuller wrote. So Rex refined his code even further and made it public. But its detail and precision made it “a masterpiece of obscurity.” Soon “a picket appeared before the royal palace carrying a sign that read, ‘How can anybody follow a rule that nobody can understand?’”
Next week the Supreme Court will look at cases in which two criminal defendants make similar pleas. On Monday, a violent neo-Nazi contends that he is facing 15 years in prison under a law that not only he but some of the most learned judges in the country find incomprehensible; the next day, a dealer in “designer drugs,” claims that he is facing prison under a law so complex that its prohibitions are effectively secret from anyone except skilled chemists.
The neo-Nazi, Samuel Johnson, faces a 15-year minimum sentence under the Armed Career Criminal Act. ACCA provides that any person convicted in federal court of a firearms offense will receive a minimum 15-year sentence if he or she has previously been convicted three times in state or federal court of “a violent felony or a serious drug offense.” As originally passed in 1984, the Act limited the “violent felonies” to crimes in which force was actually used or threatened, or to any robbery or burglary; two years later, Congress made the law even “tougher.” It now specifies that any offense is a “violent felony” if it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”