An important statute in the prosecution of federal firearms offenses was struck down this week by the Supreme Court in United States v. Davis. The ruling will relieve many defendants who would otherwise face longer sentences for using firearms while committing a “crime of violence” – a phrase the Supreme Court determined was unconstitutionally vague as defined under the statute.
Section 924(c) of the federal criminal code makes it a separate federal offense to use or carry a firearm during a federal “crime of violence”. The law, originally enacted by the Gun Control Act of 1968 and amended in the 1980s, was designed to combat the rise of violent gun crime in America. Over time, it has become one of the most often-prosecuted offenses in the federal criminal system. It is also one of the most severe sentencing enhancement statutes. Section 924(c) offenders, for instance, face a mandatory minimum sentence of five years in prison, over and above any sentence they receive for the underlying crime. The minimum sentence rises to seven years if the defendant brandishes the firearm and ten years if the firearm is discharged. Certain types of weapons also trigger enhanced penalties and repeat violations of Section 924(c) carry a minimum sentence of 25 years.
The ultimate issue in Davis, however, was how the statute defines a “crime of violence”. Section 924(c)(3) defines a “crime of violence” in two ways: the first clause known as the elements clause, and the second the residual clause. The elements clause asks whether the underlying crime categorically fits within Section 924(c) where a judge finds that an element of the underlying crime entails the use of physical force. The residual clause, on the other hand, focuses on the defendant’s conduct during the crime and asks the jury whether the defendant’s actual conduct involved a substantial risk that physical force may be used. The question in Davis was whether the residual clause is unconstitutionally vague. Justice Neil Gorsuch, breaking rank with the conservative wing and writing for the Court, believed it is.
While the decision in Davis is extraordinary, many observers consider it the latest “domino to fall” in the wake of the Supreme Court’s 2015 ruling in United States v. Johnson. Johnson involved a vagueness challenge to the residual clause of the Armed Career Criminal Act, which imposed additional punishment for repeat offenders with multiple prior convictions for “violent felonies”. The ACCA’s residual clause similarly defined a violent felony as an “offense that otherwise involves conduct that presents a serious potential risk of physical injury to another.” Justice Scalia, writing for an eight-member majority, concluded that the ACCA’s residual clause was unconstitutionally vague because it “leaves grave uncertainty about how to estimate the risk posed by a crime …[and] how much risk it takes for a crime to qualify as a violent felony.”
Justice Scalia’s opinion in Johnson set the stage for a broader constitutional challenge to the federal criminal code’s definition of “crime of violence” in the residual clause of Section 16, which is almost identical to Section 924(c)’s residual clause. In Sessions v. Dimaya, the Supreme Court considered how the Immigration and Nationality Act defines an “aggravated felony”, which is a ground for removal in immigration proceedings. The INA’s definition of aggravated felony cross-references several other federal criminal statutes, including any crime of violence as defined in Section 16(b) of the federal criminal code. Justice Kagan, writing for a smaller majority, explained that “Johnson was a straightforward decision, with equally straightforward application here.” Applying the holding in Johnson, she argued that federal criminal code’s residual clause had the same two fatal features that rendered the ACCA’s residual clause unconstitutionally vague: it “‘requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents’ some not-well-specified-yet-sufficiently-large degree of risk.”
In many ways, Dimaya foreshadowed the result in Davis this week. Justice Gorsuch’s concurrence in Dimaya last year was effectively a prologue to his opinion in Davis. His concurrence in Dimaya began with a lengthy defense of the vagueness doctrine, followed by a discussion of the fair notice standard. Applying both in Dimaya – and relying on both again in Davis – Justice Gorsuch agreed that Section 16’s residual clause failed to pass constitutional muster for the same reasons Justice Scalia identified in Johnson.
On other side of the divide, Chief Justice Robert’s dissent predicted the result in Davis when he wrote that the majority in Dimaya “uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more).” Justice Kavanaugh echoed this sentiment in his dissent in Davis, considering the majority’s opinion a “serious mistake … to follow Johnson and Dimaya off the constitutional cliff….”
In the end, the decision in Davis will undoubtedly affect the prosecution of federal firearms offenses going forward. More importantly, however, it will open the floodgates to thousands of petitions filed by federal offenders previously convicted under Section 924(c). Indeed, the concern that overturning this statute would result in releasing thousands of inmates convicted of violent gun crimes early was an issue raised by the government in its briefing and at oral arguments, and by Justice Kavanaugh in his dissent. Nevertheless, this concern is largely overstated, as Justice Gorsuch pointed out, because overturning a defendant’s 924(c) conviction will not necessarily result in lighter sentences. As he explained, courts of appeals routinely vacate a defendant’s entire sentence on all counts so that, at resentencing, a district court may increase the sentence for the remaining counts if such an increase is warranted.
The decision in Davis also reveals Justice Gorsuch’s libertarian leanings and his general skepticism of state power. Indeed, we have seen Justice Gorsuch advocate for defendants’ rights more than once in recent decisions, notably in Gamble v. United States. In Gamble, Justice Gorsuch, along with Justice Ruth Bader Ginsburg, dissented and argued against the double jeopardy exception that allows federal and state prosecutors to pursue alleged criminals for the same offense. While his argument did not carry the day in Gamble, it did in Davis and its impact will be unmistakably noticed in the months to come.