Justice Neil Gorsuch joined with the Supreme Court’s liberal bloc to deal victory for criminal defendants Monday, striking down a federal law that punishes gun crimes as unconstitutionally vague.
The law at issue authorizes heightened penalties for individuals who use firearms to a commit a “crime of violence.”
“Only the people’s elected representatives in Congress have the power to write new federal criminal laws,” Gorsuch wrote in the majority opinion. “And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.”
“Vague laws transgress both of those constitutional requirements,” Gorsuch added. “They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.”
Monday’s case involved defendants Maurice Davis and Andre Glover, who were charged and convicted with robbery and conspiracy arising from a string of gas station robberies in Texas in June 2014. Prosecutors also charged the pair under the heightened penalty law because they brandished a short-barreled shotgun in the course of those robberies.
The Supreme Court said Monday that the definition of “crime of violence” was too ill-defined to be constitutional. Under the heightened penalty law, a crime of violence is any offense that “by its nature, involves a substantial risk that physical force against the person or property of another may be used.”
When deciding whether an offense “involves a substantial risk” of force under the heightened penalty law, the courts do not look to the specific facts of the crime before them. Instead, they must estimate whether violence is likely in the ordinary commission of that crime. That kind of analysis, called the “categorical approach,” has been called unpredictable and arbitrary in closely related contexts, Gorsuch noted. (RELATED: Racial Bias Runs Deep In Supreme Court’s Latest Decision)
Defending the law before the Supreme Court, the Trump administration argued the heightened penalty law does not mandate the categorical approach and can be read to allow a fact-specific evaluation. Though Gorsuch agreed that would probably cure any vagueness problems, he said the law clearly requires the categorical approach.
“The statute simply cannot support the government’s newly minted case-specific theory,” Gorsuch wrote.
Gorsuch has joined his liberal colleagues to strike down vague statutes before — he provided the fifth vote in April 2018 to overrule a provision of the Immigration and Nationality Act that permits deportation of an alien convicted of an aggravated felony. The list of convictions that qualified as an aggravated felony included a catchall provision the justices said was too imprecise.
The law at stake Monday was similar to the provision the Court struck down in the 2018 INA case, Gorsuch said. Both decisions followed directly from the 2015 Johnson v. U.S. decision, in which the late Justice Antonin Scalia led the Court in finding that a section of the Armed Career Criminal Act (ACCA) defining “violent felonies” was unlawfully vague.
Justice Brett Kavanaugh, Gorsuch’s fellow Trump appointee, led the conservatives in dissent, saying the provision had been applied in tens of thousands of cases without issue.
“The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality,” Kavanaugh wrote. Elsewhere, he warned that “thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified.”
The case is No. 18-431 U.S. v. Davis.
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