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Articles by Leah Litman

Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity?

by Leah Litman, Harvard Law Review Blog

Today [April 17, 2018] the Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.” The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences.

The Court had done something similar in Johnson v. United States, holding the Armed Career Criminal Act’s residual clause unconstitutionally void for vagueness. Now Justice Kagan, writing for the majority in Dimaya, emphatically rejected the government’s plea to keep on keeping on in a futile attempt to try and give section 16(b) meaning:

“The Government would condemn us to repeat the past—to rerun the old ACCA tape, as though we remembered nothing from its first showing. But why should we disregard a lesson so hard learned? ...


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