Readers know that from my law office here in Atlanta I work on and travel around the country to places where I represent individuals and companies accused of federal crimes. I also pontificate on occasion about the importance of keeping current in order to do this kind of work. A case issued three days ago by the Supreme Court reminded me of this need for lawyers to keep up with recent developments in the law when defending their clients.
The case from the Supreme Court was United States v. Davis which was the latest in a series of decisions in which the highest court in the land tried to figure out what Congress meant when the legislature enacted a series of tough-on-crime laws back in the 1990’s These laws either impose more severe punishments for people with prior serious crimes, or on people who use guns in current serious crimes. These laws all have a common feature; an attempt to provide a very broad definition of what is called either a “crime of violence” or “violent crime.” The problem in all of these laws is that in trying to create this broad definition, Congress failed to really say anything specific in what are called the “residual clauses” from these statutes.
In the Davis case, the Supreme Court had to figure out the meaning of the law which said a “crime of violence” is a felony “that by its nature, involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Congresss gave no guidance as to when a crime “by its nature” might “involve” a “substantial risk” that physical force “may” be used not just in the crime, but “in the course” of committing the offense. Whew! That’s a lot of uncertain and undefined terms! No surprise, the Court held this is unconstitutionally vague.
“In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legisla- ture’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.”
I am working on a case now with a law that also has a wide variety of undefined words and phrases. I am not saying that the courts will necessarily throw this other law out as well, but it is important to at least consider whether the language from the Davis case might be helpful in challenging this other statute. This the law is likewise quite vague, and seems to let prosecutors and judges decided for themselves what is, and is not, a crime. As the Davis decision explains, that role is for Congress.