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SUPREME COURT DECLARES 18 USC 16(b) CRIME OF VIOLENCE RESIDUAL CLAUSE UNCONSTITUTIONALLY VAGUE
The Supreme Court handed down the long-awaited Dimaya decision yesterday, a 96-page tome with splintering concurrences and dissents going everywhere, but holding by a 5-4 majority that the residual clause of the 18 USC 16(b) crime of violence definition is unconstitutionally vague.
For those who just joined us, 18 USC 16 defines “crime of violence” as the term is used throughout the criminal code. The statute in it entirety reads:
The term “crime of violence” means
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and 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 focus, ever since Johnson v. United States, has been on the vagueness of subsection (b). Mr. Dimaya is a noncitizen being deported because of two California burglaries. He challenged whether those were crimes of violence. While his case was pending, Johnson was handed down, so he added a Johnson claim. The government argued Johnson did not apply to 18 USC 16(b).
The liberal wing of the Court – Kagan, Sotomayor, Brennen and Ginsburg – were joined in a concurrence by newest Justice Neil Gorsuch – in holding that “a straightforward application of Johnson effectively resolves” Dimaya. The majority said that Section 16(b) of the Criminal Code has the same two features as the residual clause of the Armed Career Criminal Act struck down in Johnson — an ordinary-case requirement and an ill-defined risk threshold — combined in the same constitutionally problematic way.
The opinion noted that the ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”
The majority said Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the majority concluded, the same “two features” that “conspired to make” ACCA’s residual clause unconstitutionally vague also exist in 16(b), with the same result.
The Court’s “ordinary-case requirement and an ill-defined risk threshold” test for determining vagueness strikes us as a bludgeon that inmates should be able to use in attacking vagueness in 18 USC 924(c) crime of violence residual clause, as well as anywhere else the “crime of violence” definition appears.
There’s a lot to this case (especially if you take time to read the dissents), and the politics of the majority opinion, four liberal bomb-throwers joined by cool, conservative Neil Gorsuch, should engender its own comment. But for now, we can say this is a big win for criminal justice (and we mean “criminal justice” in a good way). But beware: as law professor Leah Litman noted at the Harvard Law Review blog this morning, because the devil’s in the details:
Dimaya was right to correct a wrong of the past. But while Dimaya may prevent another rerun of the ACCA insanity, it’s not yet clear how many wrongs of the past Dimaya will ultimately right. Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.
Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, April 17, 2018)
– Thomas L. Root
