Redefining violent crime in United States v. Davis decision
This summer's United States Supreme Court decision in United States v. Davis drastically affects the federal criminal code, particularly in sentencing. The Court held that a section of 18 U.S.C. 924, which provides sentence enhancements for crimes of violence committed with a firearm, is unconstitutionally vague in its definition of "violent crimes" that do not have violence as one of its elements.
Relying on due process and separation of powers principles, the Court highlighted the danger in vague laws and the role of the branches of government, declining to take extra steps to ensure the constitutionality of the statute.
Justice Gorsuch writes for the Court:
Our doctrine prohibiting the enforcement of vague laws rests on the twin constitutional pillars of due process and separation of powers. Only the people’s elected representatives in the legislature are authorized to “make an act a crime.” Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide.
Davis at 2325.
The potential constitutional problem
The section in question provides additional sentence times for, “any person who, during and in relation to any crime of violence or drug trafficking crime…for which the person may be prosecuted…uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” (18 U.S.C. 924(c)(1)(A)).
The statute (18 U.S.C. 924(c)(3)) applies to two types of crimes:
1. Those with force against another as an element of the crime (the elements clause), and
2. Those "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" (the residual clause)
The Davis case focuses on the latter clause and whether it is specific enough to pass Constitutional muster.
Background and procedure
Defendants in this case were convicted of violation of the Hobbs Act (18 U.S.C. 1951) and conspiracy to commit Hobbs Act violations, and they were subjected to sentence enhancements for both crimes under 18 U.S.C. 924 because they carried guns during the commission of the robbery. They challenged the statute as unconstitutionally vague.
The district court rejected that argument, and the 5th Circuit Court of Appeals affirmed. Not long after, the Supreme Court decided Sessions v. Dimaya, which struck down the virtually identical residual clause in 18 U.S.C. 16.
Following Dimaya, the Supreme Court remanded the Davis case back to the 5th Circuit for reconsideration. With that new precedent, the Court of Appeals found that application of the sentence enhancement for conspiracy, which relies on the residual clause, was unconstitutional, but maintained the sentencing for the Hobbs Act violations themselves.
The Supreme Court granted cert to decide whether this statute is likewise unconstitutionally vague.
Unconstitutionality of “categorical approach”
Davis was highly dependent on the statutory interpretation the Court has already done for similar provisions in other sections of the criminal code. In Dimaya, the Court held that interpreting "crime of violence" under the residual clause of 18 U.S.C. 16 requires a "categorical approach" in which a judge or jury is to abstractly consider whether violence is in "the nature" of a typical or ordinary case, rather than looking at the specifics of the case.
This interpretation is consistent with the holding in Johnson v. United States (2015), in which the Court interpreted another nearly identical definition in the Armed Career Criminal Act (ACCA) (18 U.S.C. 922).
Previous interpretations of these residual clauses created a requirement that judges disregard the way a crime was committed and instead imagine whether the typical, “ordinary” commission of that crime would create a “serious potential risk of physical injury to another.” This approach, the Court held, is impermissibly vague. Judges should not be estimating risk in an ordinary case; this results in arbitrary and unpredictable judgments.
In light of those precedential cases and the explicit language in the statute, the government agreed that reading 18 U.S.C. 924 to require a categorical analysis must result in a similar holding. To survive this, the government encouraged Justices to adopt a "case specific" method, in which judges or juries look to the actual conduct of the defendant.
Justice Gorsuch, writing for the majority, rejected that interpretation of the statutory definition.
Highlighting the importance of separation of powers, Gorsuch examined the statute text, context, and history to conclude that section 924 was intended by Congress to be understood consistent with 18 U.S.C. 16 and 18 U.S.C. 922. In cannons of statutory construction, there is a presumption that language used in related statutes have consistent meanings.
In fact, Section 924 was taken directly from Section 16. “Importing the residual clause from s. 16 into s. 924(c)(3) almost word for word would have been a bizarre way of suggesting that the two clauses should bear drastically different meanings. Usually when statutory language is obviously transplanted from other legislation, we have reason to think it brings the old soil with it.” Davis at 2331 (internal quotes removed).
Due process concerns
Acknowledging that previous cases have narrowed the construction of a criminal statute in order to protect its constitutionality, the Court distinguished those cases by looking at the implications of attempting a restricted interpretation. Doing so in this case would be the first time the Court expanded the reach of the criminal statute. A case-specific reading could allow the sentence enhancements to be used to apply to not just conduct that requires violence as an element, but also to felonies that are categorically non-violent if that felony was committed in a violent way.
Considering how the statute has been interpreted and applied in the past, changing to a case-specific approach would subject some defendants to punishment they did not have warning would apply to their conduct because of that expansion.
Not only would this violate due process, but it would also “sit uneasily with the rule of lenity’s teaching that ambiguities about the breadth of a criminal statute should be resolved in the defendant’s favor.” Davis at 2333.
Separation of powers
While the government's case-specific interpretation may have protected the constitutionality of the statute, the Court was loath to step in to “save” the statute.
Gorsuch writes, "[o]nly the people's elected representatives in Congress have the power to write new federal criminal laws," and the Supreme Court cannot use its interpretation to save an unconstitutionally vague law by creating a clearer one. “When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.” United States v. Davis at 2323.
This was also the mindset underlying the Court’s rejection of the Canon of Constitutional Avoidance (often also known as the presumption of constitutionality). This principle holds that if it can be saved by a “fairly possible” reading of the language, courts have a duty to protect the constitutionality of a statute.
Already having dismissed the possibility of a case-specific approach being the Congressional intent behind this definition, the Court still declined to apply the canon in this case even hypothetically. Doing so, Gorsuch wrote, is not the province of the courts, but rather of the legislature, concluding:
Congress always remains free to adopt a case-specific approach to defining crimes of violence for purposes of § 924(c)(3)(B) going forward….[there] are options that belong to Congress to consider; no matter how tempting, this Court is not in the business of writing new statutes to right every social wrong it may perceive.
Davis at 2336.