Ropes & Gray Attorneys Submit Amicus Curiae Brief on Behalf of Retired Federal Judges in Key Case Regarding Vagueness in the Federal Criminal Code

In The News
December 22, 2016

Ropes & Gray filed an amicus curiae brief in the U.S. Supreme Court in Dimaya v. Lynch on behalf of seven retired federal judges of diverse ideologies and backgrounds in support of the Ninth Circuit’s ruling that the “residual clause” of the “crime of violence” definition found in 18 U.S.C. § 16(b) is unconstitutionally vague.  Drawing on the accumulated, on-the-ground experiences of the former judges, the brief argues that the task of classifying state crimes according to the text of the statute’s residual clause has proven to be too arbitrary, unpredictable and difficult to comport with the Constitution’s Due Process Clause.   

Courts have held that Section 16(b) requires a court to assess whether a state crime, “by its nature,” is characterized by a “substantial risk that physical force” may be used.  The Ninth Circuit determined that the statute is unconstitutionally vague because it requires a wide-ranging and indeterminate inquiry that “both denies fair notice to defendants and invites arbitrary enforcement by judges.”  The court reached this conclusion by extending the logic of the Supreme Court’s earlier decision in Johnson v. United States, which held that a substantially similar provision in a different statute was constitutionally deficient for analogous reasons.

By emphasizing the practical challenges facing judges who are forced to shoehorn a wide variety of state offenses into the “shapeless” text of the statute’s residual clause, the former judges’ brief contributes the valuable perspective of individuals who have actually worked with the problematic statutory text at issue.  The former judges argue that without a workable, coherent standard rooted in the statute’s text, application of the clause is intolerably unpredictable and unmoored from the rule of law.  At the heart of this difficulty, the brief explains, is the statute’s requirement that courts focus on the “nature” of an individual’s crime of conviction, an inquiry that requires a judge to hypothesize the “ordinary case” of a given crime and imagine what conduct it entails.