Yet another criminal statute looks set to be knocked down following Wednesday oral arguments in United States v. Davis, the latest case in a line that has created a "royal mess" since 2015.
Davis concerns the case of Maurice Lamont Davis, who was convicted along with a co-conspirator following a string of robberies in 2014. Specifically, Davis was convicted of a crime of violence under 18 U.S.C. 924(c)(3), which brings with it graduated penalties of between 5 to 10 and 25 years.
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This conviction went all the way to SCOTUS because of how the section defines a "crime of violence." Specifically, it is defined as either a) a felony that involves the use, attempted use, or threat of physical force, or b) any 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."
This second, "substantial risk," definition has popped up whack-a-mole-like in SCOTUS cases for the past four years, starting with 2015's Johnson v. United States. That case concerned a section of the Armed Career Criminals Act (ACCA), a law designed to make it easier to prosecute repeated, violent offenders.
In Johnson, the court decided 8-1 to void a "residual clause" in the ACCA which stipulated that a person could be held to have committed a violent offense if there was a "substantial risk" of the use of the force. To determine if there is such a risk, courts often use what is called the "categorical approach," assessing if in the "ordinary case" a particular offense is likely to lead to violence.
Prior to Johnson the ACCA's residual clause could, if interpreted with the categorical approach, lead to conviction for a non-violent robbery that in its "ordinary case" carries a risk of violence (with the associated mandatory minimums). But, the court found, the language of the ACCA's residual clause was so vague as to offer no guidance whatsoever for interpretation, which in turn qualified it as unconstitutionally vague.
This seemingly technical conclusion has had major reverberations in federal criminal law, in part because the "substantial risk" approach to specifying a crime of violence appears over and over again throughout it. Last year, Justice Neil Gorsuch made headlines by siding with the court's liberals in Dimaya v. Sessions, applying the same reasoning from Johnson to the deportation of a green card holder found guilty of a non-violent "violent" felony.
Johnson was also the subset of Justice Brett Kavanaugh's first ever question during oral arguments, showing just how much the ruling has reverberated through the criminal law.
Davis, meanwhile, looks set to be "the last Johnson domino to fall," a lower court wrote, because the section of federal law it concerns appears to be the last to replicate the "substantial risk" language that was already struck down in a different context in Dimaya.
At oral arguments Wednesday, SCOTUSBlog reports, the government sought to save that section of law by trying to convince the court's justices that the reason they had rejected the ACCA and the law in Dimaya was their choice of interpretative method—using the "categorical approach" rendered an unconstitutionally vague interpretation, but considering the real world form that the crime actually took might not have. In SCOTUSBlog's estimate, the justices seemed unconvinced
"By the end of the argument, it was clear that at least three justices, and quite possibly five, are not inclined to abandon the categorical approach in order to save Section 924(c)," wrote guest blogger and law professor Leah Litman.
This is all relevant thanks to the path that Johnson and related cases have carved through the criminal law. Former Attorney General Jeff Sessions Attorney called the ruling "devastating for Americans," and indicated that more than 1,400 federal prisoners were released early under post-Johnson sentence reductions.
Sens. Tom Cotton (R., Ark.) and Orrin Hatch (R., Utah) introduced a bill in the last Congressional session to address the neutering of the ACCA. The Restoring the Armed Career Criminal Act would replace the voided language in the ACCA with a blanket application of its terms to any individual convicted of a felony with a minimum sentence of ten years or more, thus doing away with any concerns of vagueness.
"True criminal justice reform includes giving prosecutors the tools they need to seek enhanced penalties against the worst repeat offenders," Hatch said at the time. "Prosecutors lost one of those tools three years ago when the Supreme Court ruled that a provision of the Armed Career Criminal Act was unconstitutionally vague. Criminals released early from prison as a result of that decision have gone on to commit heinous crimes, including the murder of three innocent Utahns."
As the last Johnson domino looks likely to fall, then, alterations may be needed not only to the ACCA, but to related criminal laws as well.