Jeremy D. Frey, partner in the White Collar Litigation and Investigations Practice Group of Pepper Hamilton, was quoted in the July 9, 2015 U.S. Law Week article, "SCOTUS Serves Real Criminal Law Change; Possibly More on the Way." The article was also published in the July 22, 2015 edition of Crime Law Reporter under the title, "Confrontation, Executions, ACCA Sentencing Stand Out in Supreme Court’s 2014-15 Term."
Jeremy D. Frey, a former federal prosecutor who has a white collar practice at Pepper Hamilton LLP, in Philadelphia and Princeton, N.J., told Bloomberg BNA that he sees Johnson v. United States, 83 U.S.L.W. 4576, 2015 BL 204915 (U.S. June 26, 2015) (83 U.S.L.W. 2001, 6/30/15), as one of the criminal law headliners of the 2014-15 term.
“Johnson returned the court to the constitutional jurisprudence of statutory void-for-vagueness, and the dicey issue of when Congress has done such a bad job in defining a crime that the law must be struck down under due process,” Frey said.
Frey suggested that—at least for Scalia and several other justices—“Johnson may signal a real shift in the frequency of when unclear criminal laws will be returned to Congress instead of remedied by judicial decree.”
The court often struggles with the question of when to apply statutory rules of construction to save a statute and when to invalidate it, Frey noted. “Perhaps most notable in Johnson is the majority's apparent departure from fairly established void-for-vagueness requirements,” he added.
In his dissent, Alito accused the majority of “brushing aside stare decisis” to “rid our docket of bothersome residual clause cases.”
The court's departure could have an impact in other areas, Frey said, because there are many other criminal statutes that could be challenged for similar vagueness problems. “They include such criminal laws as the problematic federal insider trading law, the Anti-Terrorism Act and the Anti-Kickback Statute, among others.”
“Johnson may not be a full-blown change in the wind regarding constitutional facial vagueness challenges, but there is a new breeze,” Frey said.
The full article is available on Bloomberg BNA The United States Law Week with a subscription.