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Crimes of Violence and Deportation

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Today the U.S. Supreme Court decided Sessions v. Dimaya, regarding deportation and the vague definition of "crime of violence."  Justice Kagan's opinion is mostly for a majority, and hence "the opinion of the Court," but Justice Gorsuch splits off in part.  The variations in the opinions are interesting here.

"[R]emoval is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here," the opinion says.  I have noted on this blog more than once that the basic rule is a good one but the definition of "aggravated felony" is a mess requiring congressional attention.  Here is the essence of today's holding:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law's definition of "violent felony" was impermissibly vague. See 576 U.S. ___ (2015). The question in this case is whether a similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.
The statute in question is one item in the immigration law's long list of aggravated felonies, a cross-reference to the general definition of "crime of violence" in the federal criminal code, 18 U.S.C. § 16:
(a) an offense that has as 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.
This case involves subdivision (b), the "residual clause."  What is the "nature" of a particular felony?  Definitions of crimes vary widely by state, and a single statute may cover a wide range of conduct.  The Supreme Court's "categorical" approach has looked neither at the defendant's actual conduct in the particular case nor the minimum conduct needed to constitute the crime but rather at the "ordinary case" under the statute.  If that sounds messy, it's because it is.

In the Johnson case in 2015, after years of grappling with similar language in the Armed Career Criminal Act, the Court threw up its hands and held it to be unconstitutionally vague in violation of the Due Process Clause.  Does this holding control in a deportation case?  Yes, the plurality concludes:

The Government argues that a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case.
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But this Court's precedent forecloses that argument,because we long ago held that the most exacting vagueness standard should apply in removal cases.... That approach was demanded, we explained, "in view of the grave nature of deportation," ... a "drastic measure," often amounting to lifelong "banishment or exile" [citation].

Justice Gorsuch would go further, applying the vagueness doctrine to civil cases generally.  First, he treats us to an extended original-understanding defense of the rule that excessively vague statutes violate the constitutional requirement of due process of law.  Then he goes on to say:

But in the criminal context this Court has generally insisted that the law must afford "ordinary people . . . fair notice of the conduct it punishes." Johnson, 576 U. S., at ___ (slip op., at 3). And I cannot see how the Due Process Clause might often require any less than that in the civil context either. Fair notice of the law's demands, as we've seen, is "the first essential of due process." Connally, 269 U. S., at 391. And as we've seen, too, the Constitution sought to preserve a common law tradition that usually aimed to ensure fair notice before any deprivation of life, liberty, or property could take place, whether under the banner of the criminal or the civil law.

Wow.  I'll bet my friends at Pacific Legal Foundation are licking their chops over that one.  How about applying the criminal void-for-vagueness standard to a statute against "unfair" business practices?  See Cal. Bus. & Prof. Code § 17200.  It's only a one-Justice opinion, but one-Justice opinions are sometimes adopted by the full Court eventually.

How about if, instead of striking down the statute, we just look at what this person actually did?  Sometimes potentially vague statutes have crystal clear applications.  The classic example is Parker v. Levy (1974).  An officer court-martialed for "conduct unbecoming an officer and a gentleman" claimed that the statute was unconstitutionally vague.  The Supreme Court rejected the argument for several reasons, one of which is that however vague it might have been in other contexts, Levy's conduct of urging enlisted men to defy their orders was very clearly within its ambit.

Justice Thomas, calls for abandoning the categorical approach in part II-B, a portion of his opinion joined by Justices Kennedy and Alito:

I see no good reason for the Court to persist in reading the ordinary-case approach into §16(b). The text of §16(b) does not mandate the ordinary-case approach, the concerns that led this Court to adopt it do not apply here, and there are no prudential reasons for retaining it. In my view, we should abandon the categorical approach for §16(b).
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[T]his Court adopted that approach to avoid a potential Sixth Amendment problem with sentencing judges conducting minitrials to determine a defendant's past conduct....  [N]o such problem arises in immigration cases.  And, in criminal cases, the underlying-conduct approach would be perfectly constitutional if the Government included the defendant's prior conduct in the indictment, tried it to a jury, and proved it beyond a reasonable doubt. [Citation.] Nothing in §16(b) prohibits the Government from proceeding this way, so the plurality is wrong to suggest that the underlying-conduct approach would necessarily "ping-pong us from one constitutional issue to another."

Where does Justice Gorsuch stand on this question?  He does not reach it because the Government conceded the point.  How about the Chief Justice?  He does not say directly, preferring to distinguish this statute from the one in Johnson.  He takes the categorical approach precedents as given for the purpose of that analysis.  See pages 4-5.  Justices Kennedy, Thomas, and Alito apparently don't see that as inconsistent, as they join both opinions.  Perhaps the actual conduct approach will reappear in another case.  Or maybe Congress will accept the invitation to clean up the mess.  See Justice Gorsuch's opinion, page 19.

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