Laws That Establish Permissible Criminal Sentences

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

With regard to statutes that fix criminal sentences,1 the Supreme Court has explained that the law must specify the range of available sentences with “sufficient clarity.” 2 For example, in Johnson v. United States, after years of litigation on the meaning and scope of the “residual clause” of the Armed Career Criminal Act of 1984 (ACCA),3 the Court concluded that the clause in question was void for vagueness.4 In relevant part, the ACCA imposed an increased prison term upon a felon who was in possession of a firearm, if that felon had previously been convicted for a “violent felony,” a term that the statute defined to include “burglary, arson, or extortion, [a crime that] involves use of explosives, or” crimes that fell within the residual clause—that is, crimes that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.” 5 In Johnson, prosecutors sought an enhanced sentence for a felon found in possession of a firearm, arguing that one of the defendant’s previous crimes—unlawful possession of a short-barreled shotgun—qualified as a violent felony because the crime amounted to one that “involve[d] conduct that presents a serious potential risk of physical injury to another.” 6 To determine whether a crime fell within the residual clause, the Court had previously endorsed a “categorical approach” —that is, instead of looking to whether the facts of a specific offense presented a serious risk of physical injury to another, the Supreme Court had interpreted the ACCA to require courts to consider whether the underlying crime fell within a category of crime that ordinarily would present a serious risk of physical injury.7

The Court in Johnson concluded that the residual clause was unconstitutionally vague because the clause’s requirement that courts determine what an “ordinary case” of a crime entails led to “grave uncertainty” about (1) how to estimate the risk posed by the crime, and (2) how much risk was sufficient to qualify as a violent felony.8 For example, in determining whether attempted burglary ordinarily posed serious risks of physical injury, the Court suggested that reasonable minds could differ as to whether an attempted burglary would typically end in a violent encounter, resulting in the conclusion that the residual clause provided “no reliable way” to determine what crimes fell within its scope.9 In so holding, the Court relied heavily on the difficulties that federal courts (including the Supreme Court) have had in establishing consistent standards to judge the scope of the residual clause, noting that the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.10

In Sessions v. Dimaya, the Court extended Johnson to conclude that a statute allowing the deportation of any alien who committed a “crime of violence” was unconstitutionally vague.11 Similar to the statute at issue in Johnson, the statute at issue in Dimaya defined the phrase “crime of violence” by reference to a statutory “residual clause” covering felonious conduct that “involve[d] a substantial risk that physical force . . . may be used in the course of committing the offense,” and lower courts had again adopted the categorical approach to determine whether any particular offense fell within the ambit of the residual clause.12 The Court concluded that Johnson had “straightforward application” to the case before it,13 because in both cases, the statutes required courts to impermissibly speculate about the “ordinary version” of an offense, and about whether that offense involved a sufficient risk of violence to fall within the ambit of the provision. In so doing, the Court rejected purported distinctions between the two residual clauses.14 The government raised a number of textual differences between the two statutes—the Dimaya statute used the phrase “in the course of,” while the Johnson statute did not; the Dimaya statute referenced the risk of “physical force,” while the Johnson statute referred to “physical injury” ; and the Dimaya statute, unlike the Johnson statute, did not include an exemplary list of covered crimes.15 In the eyes of the Court, these were “the proverbial distinction[s] without a difference,” because none related “to the pair of features—the ordinary-case inquiry and a hazy risk threshold—that Johnson found to produce impermissible vagueness.” 16

The Court subsequently considered the constitutionality of another residual clause in United States v. Davis, and as in Johnson and Dimaya, held that the clause was unconstitutionally vague.17 The challenged federal statute created a sentence enhancement for offenders “using or carrying a firearm ‘during and in relation to,’ or possessing a firearm ‘in furtherance of,’ any federal ‘crime of violence or drug trafficking crime.’” 18 The statutory definition of “crime of violence” included a residual clause stating that a felony offense would be included in the definition if, “by its nature,” the offense “involve[d] a substantial risk that physical force . . . may be used in the course of committing the offense.” 19 In light of Johnson and Dimaya, the government acknowledged that if this statute also used the categorical approach to determine whether a crime was a “crime of violence,” the provision would be unconstitutional.20 Instead, the government defended the provision by arguing that courts should adopt a “case-specific approach” to interpreting this statute, asking whether a defendant, through his or her “actual conduct,” posed a “substantial risk of physical violence.” 21 Although the Court acknowledged that this case-specific method would “avoid the vagueness problem” by focusing on the specific defendant’s actual conduct, it nonetheless concluded that the statute could not be read to embrace this approach.22 The Court emphasized that it had already interpreted very similar statutory provisions to require the categorical approach,23 concluding that the word “offense” is “most naturally” read to “refer to a generic crime” 24 and expressing concerns about an approach that would give different meanings to the phrase “crime of violence” in different parts of the criminal code.25 Consequently, because the statute employed a categorical approach, the Court held that the provision in Davis, like the ones at issue in Johnson and Dimaya, was “unconstitutionally vague.” 26

1: In United States v. Beckles, the Supreme Court concluded that the federal sentencing guidelines “do not fix the permissible range of sentences” and, therefore, are not subject to a vagueness challenge under the Due Process Clause. See 137 S. Ct. 886, 892 (2017). Rather, the sentencing guidelines “merely guide the district courts’ discretion.” Id. at 894. In so concluding, the Court noted that the sentencing system that predated the use of the guidelines gave nearly unfettered discretion to judges in sentencing, and that discretion was never viewed as raising similar concerns. Id. Thus, the Court reasoned that it was “difficult to see how the present system of guided discretion” could raise vagueness concerns. Id. Moreover, the Beckles Court explained that “the advisory Guidelines . . . do not implicate the twin concerns underlying [the] vagueness doctrine—providing notice and preventing arbitrary enforcement.” Id. According to the Court, the only notice that is required regarding criminal sentences is provided to the defendant by the applicable statutory range and the guidelines. Further, the guidelines, which serve to advise courts how to exercise their discretion within the bounds set by Congress, simply do not regulate any conduct that can be arbitrarily enforced against a criminal defendant. Id. at 895.
2: See United States v. Batchelder, 442 U.S. 114, 123 (1979).
3: See, e.g., Sykes v. United States, 564 U.S. 1 (2011); Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007).
4: See Johnson v. United States, 135 S. Ct. 2551 (2015).
5: See 18 U.S.C. § 924(e)(2)(B) (2012).
6: Johnson, 135 S. Ct. at 2556.
7: See James, 550 U.S. at 208.
8: Johnson, 135 S. Ct. at 2557–58.
9: Id.
10: See id. at 2558–60 ( “Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.” ).
11: 138 S. Ct. 1204, 1213 (2018). Justice Neil Gorsuch did not join that portion of the Court’s opinion detailing how the void-for-vagueness doctrine applies in the context of non-criminal removal cases. See id. at 1212–13. Justice Gorsuch suggested that he believed the Due Process Clause required the same standard in both criminal and civil cases, id. at 1228–30 (Gorsuch, J., concurring), but he ultimately resolved the issue by citing to the relevant statute, noting that Congress had chosen “to extend existing forms of liberty” to certain individuals—and once it had done so, the government could take away that “liberty . . . only after affording due process.” Id. at 1230.
12: Id. at 1211 (majority opinion).
13: Id. at 1216.
14: Id. at 1218–19.
15: Id. at 1218–21.
16: Id. at 1218. Nor did it matter to the Court that there were fewer lower court and Supreme Court cases wrestling with the proper meaning of the statute than had divided on the proper interpretation of the Johnson statute; the cases interpreting the Dimaya statute still demonstrated divisive problems of application. Id. at 1221–23.
17: 139 S. Ct. 2319, 2323–24 (2019).
18: Id. at 2324 (quoting 18 U.S.C. § 924(c)(1)(A)).
19: Id. at 2324 (quoting 18 U.S.C. § 924(c)(3)). This provision was almost identical to the residual clause considered in Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018).
20: Davis, 139 S. Ct. at 2327.
21: Id.
22: Id. at 2327–28.
23: Id. at 2327–28.
24: Id. at 2328 (quoting Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009)) (internal quotation mark omitted).
25: Id. at 2329.
26: Id. at 2336.