WASHINGTON (CN) – HBO’s most famous mobster featured at the Supreme Court on Wednesday as a lawyer for the government argued against the old way of evaluating whether a conviction should qualify as a violent crime, triggering higher sentences.
“You know, Tony Soprano is prone to fly into murderous rages at the drop of a hat, but that doesn’t make every crime that Tony Soprano commits a crime of violence,” Assistant to the Solicitor General Eric Feigin said at oral arguments this morning.
Known as the categorical approach, the method targeted by Feigin has been used by courts for nearly 30 years to determine whether a conviction fits within general definitions of crimes that trigger harsher sentences. Common definitions courts evaluate using this method include “crime of violence” or “violent felony.”
Instead of looking at what a person actually did while committing their crime, the categorical approach has courts look at what happens in “the ordinary case” of that type of crime to see if it fits a given definition.
These evaluations have drawn a string of challenges, including in the 2015 case Johnson v. United States, when the Supreme Court struck down the so-called residual clause of the Armed Career Criminal Act. That clause imposed harsher penalties for people convicted of gun crimes who had previously been convicted of a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The court did away with similar language in another section of the criminal code last year in Sessions v. Dimaya. Wednesday’s arguments meanwhile took aim at a provision that outlines punishments for people convicted of using a gun during a crime of violence.
Nearly identical to the language invalidated in Dimaya, the section now at issue defines a crime of violence as one 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 enhancement fell hard on Maurice Davis and Andre Glover, who were sentenced to more than 50 and 41 years in prison, respectively, for a string of gas station robberies they committed five years ago in Texas.
Both had petitioned the U.S. Supreme Court for relief by the time the Dimaya decision came down. The Fifth Circuit ultimately tossed out a portion of their sentence after finding that they were sentenced under an unconstitutionally vague definition of crime of violence.
Trying to save the section of criminal law on Wednesday, Feigin said the court should abandon the categorical approach in favor of a more fact-specific analysis. Under Feigin’s suggestion, judges would look at exactly what a person did while committing a crime to determine whether they committed a crime of violence.
Invoking the principle that courts should try to avoid striking laws down as unconstitutional, Feigin said the section would surmount constitutional concerns by applying a more specific factual method of evaluating crimes of violence.
He said juries, rather than judges, should be making decisions about whether a person’s actions meet the crime of violence definition in a specific case.
“What the categorical approach would do here is get away from the whole idea of sending things to juries and would substitute a judge’s categorical judgment about the ordinary case of the crime for the facts that the jury has right in front of it, to which it can easily apply a readily applicable standard of the sort that the Anglo-American system has entrusted to juries for centuries,” Feigin said.
Justice Elena Kagan who wrote the majority opinion in Dimaya, and Justice Neil Gorsuch, who wrote a concurring opinion in the case, were Feigin’s most active questioners at arguments Wednesday morning.
Kagan noted Congress specifically chose to include the words “by its nature” in the definition of crime of violence, suggesting it intended courts to use something like the categorical approach when evaluating what crimes qualify for the harsher penalties.
“This is not the way you would write a provision of the kind that you want,” Kagan said. “‘By its nature’ clearly is like, what is this offense ordinarily about?”
Assistant Federal Public Defender Brandon Beck urged the justices to keep the categorical approach in place, even if doing so dooms the sentencing enhancement. He said it is the method that Congress clearly called for in the text of the law.
“Your honors, this case is about following the text of a statute where it leads and, when necessary, requiring Congress to speak more clearly on what is prohibited,” Beck said.
He criticized the provision along the lines of the court’s decisions in Johnson and Dimaya, saying the definition of crime of violence gives judges no hint of how to find the “ordinary case” of a certain crime.
But Justice Samuel Alito, who advocated for ditching the categorical approach in Dimaya, criticized the method as unworkable and that Congress could not have actually demanded such an arrangement no matter what the text might suggest.
“If the language can be read in the workable way as opposed to the way that’s completely unworkable, we would choose the way that’s workable,” Alito said. “We would think that’s what Congress meant, not something that was dead on arrival.”