Justice Neil Gorsuch seems really determined to give violent gun felons a degree of due process our founders never envisioned. In yet another opinion, expanding upon previous decisions declaring the “crime of violence” statute unconstitutional, Gorsuch joined with the four liberal justices to vacate the criminal conviction of two violent robbers while declaring the statute upon which the conviction rested as unconstitutional. Meanwhile, there is no urgency from Congress to promote “criminal justice reform” that would actually stem the tide of judicially-mandated jailbreak of violent criminals.
One of the centerpieces of the Reagan-era tough-on-crime regime was the federal Armed Career Criminal Act (ACCA). ACCA established mandatory minimum sentencing for those who used firearms while committing crimes and enhanced penalties for repeat offender. The bill helped spawn the most precipitous drop in crime in our nation’s history by taking the most violent criminals (not just “nonviolent” drug offenders) off the streets. Numerous statutory clauses reference a “violent felony” as eligible for these penalties. Violent felony is described as including crimes such as assault, burglary, arson or a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Thousands of these cases were tried in the courts for three decades without any problems until in 2015, the Supreme Court in Johnson v. U.S. “struck down” that final clause of the statute, known as the residual clause, as unconstitutionally ambiguous. A year later, in another creeping pattern of applying their breaches in the Constitution retroactively, the Court in Welch v. United States applied this ruling retroactively to the thousands of people who were sentenced under this law since 1984. Justice Clarence Thomas vigorously dissented.
Thus, the worst of the worst within the prison system are now eligible to reopen their cases in front of numerous liberal district judges, even if they committed violent offenses, as long as they weren’t the handful of crimes enumerated explicitly in the statute.
Last April, Justice Gorsuch joined with the four liberals expanding Johnson to the context of immigration cases in Sessions v. Dimaya. In that case, Gorsuch said that a criminal legal immigrant cannot be deported under crime of violence laws. As we noted at the time, this was a massive expansion of his own doctrine of constitutional vagueness because even if crime of violence language is too vague for a criminal convictions, the courts have long said that deportations are not criminal punishments but the extension and consequence of sovereignty. As Thomas noted at the time, it was the first time the court held a criminal alien statute unconstitutional.
Which brings us to Monday’s ruling in U.S. v. Davis. Gorsuch once again joined with the four liberals in expanding the assault on the Armed Career Criminal Act, this time by saying that 924(c)(3), the statute that prohibits using or carrying a firearm during and in relation to a federal “crime of violence,” is unconstitutional, and therefore vetoed out of existence. This was a huge expansion because, as Justice Brett Kavanagh noted in his dissent, unlike in Johnson and Dimaya, which “involved statutes that imposed additional penalties based on prior convictions,” Davis dealt with “a statute that focuses on the defendant’s current conduct during the charged crime.”
Yet, Gorsuch joined with the four liberals to say the entire statute is unconstitutionally vague, thereby vacating the criminal conviction of two armed robbers who pointed short-barreled shotguns at store clerks during their robberies.
The problem with his assertion is that there is no vagueness here. The letter and intent of Congress is clear. They wanted to put away people who have violent tendencies. After all, we see this debate playing out today in the political branches over deciphering between violent and nonviolent criminals. 924(c)(3)(B) simply targets those who use a firearm in a crime 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 standard is all over the criminal code, and while we don’t like Congress delegating too much authority to the executive, this falls well within the reasoned delegation that had already been in the system long before the rise of the administrative state.
Moreover, there is no doubt that this specific case of two convicted armed robbers who robbed a convenience store with short-barreled shot guns jabbed in the side of a store clerk would be viewed by any reasonable person as part of the statute. The fact that there might be some cases where Gorsuch believes the statute might be applied in a vague way does not veto the statute. Courts don’t get to veto laws and rip statutes out of the law books. They render judgments in individual cases. If there is an individual defendant where 924(c) is applied to a case that is not clear-cut, it would be OK for Gorsuch to vacate the conviction. But he has no such power to abstractly rip statutes out of the books, thereby making it that even the most violent actors would not be covered.
The Due Process Clause of the Constitution doesn’t give criminal defendants the power to have statutes they believe as vague to be categorically “struck down.” The entire modern vagueness doctrine is new to the 20th century and rose exactly at the same time that the courts began using the due process clause in general to “veto” democratically-passed laws rather than rule on individual cases. Any true originalist would scuttle this doctrine as a violation of judicial power.
However, putting aside the legal analysis, even if one agrees with Gorsuch’s very strict standard on the vagueness doctrine in criminal statutes, everyone should agree from a political perspective the results of these cases, culminating with Monday’s ruling, will be devastating to our communities. Thousands of the most hardened violent criminals who graduated to the federal system, and often work for transnational cartels and gangs, will be released early and many will never be convicted. As Kavanaugh warned in his dissent, which was joined by John Roberts, Thomas, and Samuel Alito, “defendants who successfully challenge their §924(c) convictions will not merely be resentenced. Rather, their §924(c) convictions will be thrown out altogether.”
Shouldn’t everyone agree that Congress must rewrite the statute? Indeed, even former Attorney General Eric Holder agreed that retroactivity should not be applied to those who received a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c).
Yet, rather than pushing the first step of getting tough on the most violent criminals, Jared Kushner is pushing President Trump into supporting a “second step” act on behalf of criminal justice “reform.” But if their entire premise was to help nonviolent criminals, how can they remain silent and not push to convict the most violent gun felons under clear statutes?
I guess Kim Kardashian’s zeal for gun control only applies to law-abiding gun owners, but not armed robbers. And yes, Kushner’s zeal for helping so-called nonviolent criminals is not reciprocated with a commensurate zeal for keeping the violent criminals off the streets and preserving the last modicum of Reagan’s successful reduction in violent crime.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.