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U.S. Supreme Court Holds Residual Clause Definition of ‘Crime of Violence’ Unconstitutionally Vague Under Due Process Clause

by Dale Chappell

The U.S. Supreme Court struck yet another residual clause definition of “crime of violence” as unconstitutionally vague in a major decision that could potentially affect thousands of prisoners serving longer prison sentences for a conviction falling under this type of clause.

When the Government sought to deport James Dimaya after his second California burglary conviction, the Board of Immigration Appeals (“BIA”) determined that his first-degree burglary conviction was a “crime of violence” under the “substantial risk of the use of force” clause and therefore an “aggravated felony,” requiring his deportation pursuant to the Immigration and Nationality Act (“INA”).

The INA requires that any alien convicted of an “aggravated felony” must be deported. This includes a conviction for a “crime of violence,” as defined in 18 U.S.C. § 16. The statute’s definition of “crime of violence” is divided into two parts that are commonly known as the elements clause in § 16(a) and the residual clause in § 16(b), which was at issue in the present case.

The statute’s two parts cover: (a) an offense that has 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.

While Dimaya’s appeal was pending in the U.S. Court of Appeals for the Ninth Circuit, the U.S. Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that the “residual clause” of the Armed Career Criminal Act (“ACCA”) contained in 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. The clause reads in pertinent part “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Dimaya then argued that the residual clause the BIA relied on ordering his deportation was materially similar to the ACCA’s residual clause and thus equally unconstitutionally vague. Based upon the Supreme Court’s holding in Johnson, the Ninth Circuit held that § 16(b) of the INA was indeed similarly unconstitutionally vague and ruled in favor of Dimaya.

The Government appealed to the U.S. Supreme Court, which granted certiorari to resolve a Circuit split in which two other Circuits reached the same conclusion as the Ninth but another Circuit distinguished the residual clause contained in the ACCA from the residual clause in § 16(b). The Supreme Court affirmed the Ninth Circuit’s ruling in favor of Dimaya.

The Court began its opinion by noting it held in Johnson that a similarly worded clause as the one at issue in the present case was impermissibly vague. It then announced that § 16 (b) “suffers from the same constitutional defect” as the residual clause in Johnson, i.e., void for vagueness.

The void for vagueness doctrine developed by the Supreme Court guarantees that ordinary people have “fair notice” of the conduct prohibited by statute. Papachristou v. Jacksonville, 405 U.S. 156 (1972). Further, the doctrine helps guard against “arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” Kolender v. Lawson, 461 U.S. 352 (1983). Essentially, the doctrine serves as a corollary to the separation of powers in that the legislative branch defines what conduct is permitted and what is not. Id. The doctrine limits the power of the legislature to pass laws broad enough to catch all possible offenders and leave it to the police and courts to decide who may be rightfully detained.

In analogizing Johnson with the present case, the Court instructed that “Johnson is a straightforward decision, with equally straightforward application here.” The Court explained that two features of the ACCA’s residual clause at issue in Johnson produced “hopeless indeterminacy” inconsistent with due process, viz.: (1) It created “grave uncertainty about how to estimate the risk posed by a crime” because it linked the judicial assessment of risk to “a hypothesis about the crime’s ‘ordinary case,’ but there is no reliable way to discern what the ordinary version of any offense looked like. And without that, no one could tell how much risk the offense generally posed.” (2) It “left unclear what threshold level of risk made any given crime a ‘violent felony.’” The Johnson Court concluded that layering the latter uncertainty upon the former violated the guarantee of due process. Consequently, the statute did not provide fair notice of what conduct is prohibited.

In Dimaya, the Court determined that § 16(b)’s residual clause suffers from the same constitutional deficiencies as the ACCA’s residual clause in Johnson. As with the ACCA’s clause, § 16(b) also requires courts to identify a crime’s “ordinary case” to measure the crime’s risk. Like in Johnson, nothing in the statute assists courts with that task. The Court stated that with respect to both residual clauses the “ordinary case” is an “excessively ‘speculative,’ essentially inscrutable thing.”

The Court then observed that § 16(b) also shares the second fatal feature of the ACCA’s residual clause — “uncertainty about the level of risk that makes a crime ‘violent.’” As was the case in Johnson, § 16(b) layers the uncertainty about the requisite level of risk upon “a judge-imagined abstraction” of a crime’s “ordinary case.”

With the foregoing deficient features of § 16(b) in mind, the Court concluded that “§ 16(b) produces, just as ACCA’s residual clause did, ‘more unpredictability and arbitrariness than the Due Process Clause tolerates.’ ”

Accordingly, the Supreme Court affirmed the judgment of the Court of Appeals. See: Sessions v. Dimaya, 2018 U.S. LEXIS 2497 (2018). 

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Sessions v. Dimaya



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