I hereby declare this to be “Overcriminalization Week” at the Supreme Court. Every one of the cases scheduled for argument has some relationship to several issues in the overcriminalization debate I pointed out a couple weeks ago.
Monday’s argument in Johnson v. United States concerns whether possession of a forbidden firearm (a short-barreled shotgun) counts as a “violent felony” under the Armed Career Criminal Act, which, if part of a defendant’s criminal history, triggers a mandatory minimum. This will be a re-argument of a case argued last November. After the case was submitted, the Court ordered additional briefing on whether the residual clause (“otherwise involves conduct that presents a serious potential risk of physical injury to another”) is unconstitutionally vague.
On Tuesday, the Court will hear argument in McFadden v. United States, which is about what mens rea is required to convict a defendant for distribution of a controlled substance analogue. Some controlled substances were initially identified by a schedule in the text of the relevant statute, which is updated through notice-and-comment rulemaking. The list of analogues is not published, however, so each case goes to a jury to decide whether the alleged analogue is, in fact, an analogue.