Vagueness Dooms Oft-Used Tool to Enhance Sentences

In the Supreme Court’s June 24, 2019 opinion in United States v. Davis, the Court delivered what has been called “the last Johnson domino to fall”[1] in the series of cases deciding the meaning of “crime of violence” in criminal statutes. Declaring that, “a vague law is no law at all,” the Court struck down a central component of 18 U.S.C. § 924(c), applying the reasoning of two prior High Court cases on this topic, Johnson v. United States and Dimaya v. Sessions. The Davis decision dealt a blow to federal prosecutors who have for three decades wielded § 924(c) as a hammer to attain 25+-year sentences. The 5-4 majority opinion, penned by Justice Gorsuch and joined by the Court’s liberal wing, rejected the government’s reversal of a key concession in Johnson and Dimaya, and inspires hope that a dominant number of the current Court continues to uphold some measure of fairness in criminal law.

Suzanne A. Luban
Suzanne Luban, Clinical Supervising Attorney and Lecturer in Law

Section 924(c) imposes mandatory years of imprisonment on top of any other sentence, where a firearm was involved in the commission of certain offenses (five, seven, or ten years for the first offense, and 25 years for subsequent violations). As Justice Gorsuch observed, the section 924(c) penalties in Davis added 35-years consecutive to the sentences imposed on the two defendants for the underlying offenses. Until this year’s First Step Act, such penalties were often “stacked” where a defendant carried a firearm on two or more occasions in support of violent or drug trafficking crimes, resulting in sky-high sentences for even some first-time offenders.

The statute defines crime of violence in two parts: the elements clause (“has as an element the use, attempted use, or threatened use of physical force against the person of another”), and the residual clause. Davis invalidated section 924(c)’s residual clause, which defines a crime of violence as a felony “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.”

In Davis, Justice Gorsuch stepped into the shoes of Justice Scalia, who wrote for the 8-1 majority in the first case of this series, Johnson v. United States, 559 U.S. 133, 140 (2015). The focus of the majority opinion in Davis was to square treatment of section 924(c)’s residual clause with the precedential use of the categorical approach in nearly identical clauses in two other statutes defining violent crimes. Justice Gorsuch spent a fair amount of ink decimating the government’s opportunistic attempt to convince the Court to jettison the long-standing categorical approach in favor of a case-specific analysis for section 924(c).

In the foundational case, Johnson, the Court ruled in 2015 that the definition of a violent felony in the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. The defective clause defined a “violent felony” to include any prior felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Johnson Court held that, consistent with 30 years of jurisprudence, courts must use the categorical approach in deciding whether a crime qualifies as a violent felony. This means that the sentencing court cannot examine the actual conduct on a case-by-case basis, but instead must assess the offense “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”

The Court found the nebulous language of the ACCA’s residual clause created an indeterminate and wide-ranging inquiry that “both denies fair notice to defendants and invites arbitrary enforcement by judges.” The vagueness stemmed from requiring judges to decide both how to assess the risk in the “ordinary case” and how much risk was enough to qualify. Justice Scalia quoted former Ninth Circuit Judge Kozinski’s humorous query in a 2009 dissent: “How does one go about deciding what kind of conduct the ‘ordinary case’ of a crime involves? A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?”

Next came the 2018 plurality decision in Sessions v. Dimaya, that struck down the residual clause in 18 U.S.C. § 16(b), which many federal criminal provisions use to define a crime of violence. Dimaya also applied the traditional categorical approach to interpreting section 16(b)–because the text of the statute demanded it, as well as because the government agreed that a fact-based approach would be untenable. The same justices (voting as a plurality) as the majority in Davis held that Johnson compelled the Court to find that the section 16’s residual clause suffered from the same infirmities as that of the nearly identical residual clause in the ACCA.

Finally, in 2019 Davis serves as the capstone, applying the reasoning of Dimaya and Johnson to hold that the residual clause of section 924(c)(3)(B), which is materially identical to section 16(b), is equally vague.  Section 924(c)’s residual clause asks whether the offense is a felony “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.” Justice Gorsuch chastised dissenter Kavanaugh’s surprise that the statute is “suddenly” unconstitutional after tens of thousands of prosecutions over the past 33 years, noting that even the government conceded that the clause violates due process “if it means what everyone has understood it to mean in nearly all” of those prosecutions.

The Davis majority resoundingly rejected the government’s argument that courts should use a case-specific approach for section 924(c), demonstrating that the text, context, and legislative history of this statute each call for the categorical approach. Justice Gorsuch illustrated the wisdom of consistency in applying sections 924(c) and 16, since both sections are referenced randomly in other criminal statutes to define the phrase “crime of violence.” Interpreting statutes differently depending on whether they rely on section 16 or 924(c) would create absurd differences in penalties for quite similar offenses.

The benefits of Davis clearly apply to defendants pending sentencing in district court or those with pending appeals. Whether habeas relief is also available is an open question. Johnson opened a path to federal post-conviction petitions by prisoners who had exhausted all direct appeals under Teague, because, as the Court itself held in Welch in 2016, Johnson announced a new, previously unavailable rule. Whether Davis will be viewed as a mere extension of Johnson or also a new rule remains to be seen, but will likely spawn habeas challenges to decades of imprisonment imposed prior to Davis.

Apart from the major impact of this decision on the lives of folks who may get out from under virtual life sentences, the majority opinion is a mighty good read. It offers clever barbs and analytical attacks on Justice Kavanaugh’s dissent and even some humanitarian proclamations. For example, the majority decries the dissenters’ willingness “to consign ‘thousands’ of defendants to prison for ‘years—potentially decades,’ … because it is merely ‘possible’ Congress might have” intended the dissent’s interpretation. “In our republic, a speculative possibility that a man’s conduct violated the law should never be enough to justify taking his liberty.” Not to mention adding 35 years to his sentence.

Justice Gorsuch’s straightforward but acerbic writing style and adherence to liberal-sounding ideals suggests more surprises are to come from Justice Scalia’s successor. Perhaps this signals that the High Court is not immune to the movement to end mass incarceration, or at least is not immune to the immense human suffering caused by piling lengthy prison sentences on already over-incarcerated people.

Suzanne Luban co-teaches Stanford Law School’s Criminal Defense Clinic as the Clinical Supervising Attorney and Lecturer in Law.

[1] The last Johnson domino to fall? Litman, Leah, Scotusblog, April 17, 2019.