JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, PETITIONER
v.
JAMES GARCIA DIMAYA
Argued
January 17, 2017
Reargued October 2, 2017
ON
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
The
Immigration and Nationality Act (INA) virtually guarantees
that any alien convicted of an "aggravated
felony" after entering the United States will be
deported. See 8 U.S.C. §§1227(a)(2)(A)(iii),
1229b(a)(3), (b)(1)(C). An aggravated felony includes
"a crime of violence (as defined in [18 U.S.C.
§16] . . .) for which the term of imprisonment [is] at
least one year." §1101(a)(43)(f). Section
16's definition of a crime of violence is divided into
two clauses-often referred to as the elements clause,
§16(a), and the residual clause, §16(b). The
residual clause, the provision at issue here, defines a
"crime of violence" as "any other offense
that is a felony and 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." To decide whether a person's
conviction falls within the scope of that clause, courts
apply the categorical approach. This approach has courts
ask not whether "the particular facts" underlying
a conviction created a substantial risk, Leocal v.
Ashcroft, 543 U.S. 1, 7, nor whether the statutory
elements of a crime require the creation of such a risk in
each and every case, but whether "the ordinary
case" of an offense poses the requisite risk,
James v. United States, 550 U.S. 192, 208.
Respondent James Dimaya is a lawful permanent resident of
the United States with two convictions for first-degree
burglary under California law. After his second offense, the
Government sought to deport him as an aggravated felon. An
Immigration Judge and the Board of Immigration Appeals held
that California first-degree burglary is a "crime of
violence" under §16(b). While Dimaya's appeal
was pending in the Ninth Circuit, this Court held that a
similar residual clause in the Armed Career Criminal Act
(ACCA)-defining "violent felony" as any felony that
"otherwise involves conduct that presents a serious
potential risk of physical injury to another, " 18
U.S.C. §924(e)(2)(B)-was unconstitutionally "void
for vagueness" under the Fifth Amendment's Due
Process Clause. Johnson v. United States, 576 U.S.
___, ___. Relying on Johnson, the Ninth Circuit held
that §16(b), as incorporated into the INA, was also
unconstitutionally vague.
Held:
The judgment is affirmed.
803
F.3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect
to Parts I, III, IV-B, and V, concluding that §16's
residual clause is unconstitutionally vague. Pp. 6-11, 16-25.
(a) A
straightforward application of Johnson effectively
resolves this case. Section 16(b) has the same two features
as ACCA's residual clause-an ordinary-case requirement
and an ill-defined risk threshold-combined in the same
constitutionally problematic way. To begin, ACCA's
residual clause created "grave uncertainty about how to
estimate the risk posed by a crime" because it
"tie[d] the judicial assessment of risk" to a
speculative hypothesis about the crime's "ordinary
case, " but provided no guidance on how to figure out
what that ordinary case was. 576 U.S., at ___. Compounding
that uncertainty, ACCA's residual clause layered an
imprecise "serious potential risk" standard on top
of the requisite "ordinary case" inquiry. The
combination of "indeterminacy about how to measure the
risk posed by a crime [and] indeterminacy about how much risk
it takes for the crime to qualify as a violent felony, "
id., at ___, resulted in "more unpredictability
and arbitrariness than the Due Process Clause tolerates,
" id., at ___. Section 16(b) suffers from those
same two flaws. Like ACCA's residual clause, §16(b)
calls for a court to identify a crime's "ordinary
case" in order to measure the crime's risk but
"offers no reliable way" to discern what the
ordinary version of any offense looks like. Id., at
___. And its "substantial risk" threshold is no
more determinate than ACCA's "serious potential
risk" standard. Thus, the same "[t]wo
features" that "conspire[d] to make"
ACCA's residual clause unconstitutionally vague also
exist in §16(b), with the same result. Id., at
___. Pp. 6-11.
(b) The
Government identifies three textual discrepancies between
ACCA's residual clause and § 16(b) that it claims
make § 16(b) easier to apply and thus cure the
constitutional infirmity. None, however, relates to the pair
of features that Johnson found to produce
impermissible vagueness or otherwise makes the statutory
inquiry more determinate. Pp. 16-24.
(1)
First, the Government argues that §16(b)'s express
requirement (absent from ACCA) that the risk arise from acts
taken "in the course of committing the offense, "
serves as a "temporal restriction"- in other words,
a court applying § 16(b) may not "consider risks
arising after1' the offense's
commission is over. Brief for Petitioner 31. But this is not
a meaningful limitation: In the ordinary case of any offense,
the riskiness of a crime arises from events occurring during
its commission, not events occurring later. So with or
without the temporal language, a court applying the ordinary
case approach, whether in §16's or ACCAs residual
clause, would do the same thing-ask what usually happens when
a crime is committed. The phrase "in the course of makes
no difference as to either outcome or clarity and cannot cure
the statutory indeterminacy Johnson described.
Second,
the Government says that the §16(b) inquiry, which
focuses on the risk of "physical force, "
"trains solely" on the conduct typically involved
in a crime. Brief for Petitioner 36. In contrast, ACCAs
residual clause asked about the risk of "physical
injury, " requiring a second inquiry into a speculative
"chain of causation that could possibly result in a
victim's injury." Ibid. However, this Court
has made clear that "physical force" means
"force capable of causing physical pain or injury."
Johnson v. United States, 559 U.S. 133, 140. So
under §16(b) too, a court must not only identify the
conduct typically involved in a crime, but also gauge its
potential consequences. Thus, the force/injury distinction
does not clarify a court's analysis of whether a crime
qualifies as violent.
Third,
the Government notes that § 16(b) avoids the vagueness
of ACCAs residual clause because it is not preceded by a
"confusing list of exemplar crimes." Brief for
Petitioner 38. Those enumerated crimes were in fact too
varied to assist this Court in giving ACCAs residual clause
meaning. But to say that they failed to resolve the
clause's vagueness is hardly to say they caused the
problem. Pp. 16- 21.
(2) The
Government also relies on judicial experience with
§16(b), arguing that because it has divided lower courts
less often and resulted in only one certiorari grant, it must
be clearer than its ACCA counterpart. But in fact, a host of
issues respecting §16(b)'s application to specific
crimes divide the federal appellate courts. And while this
Court has only heard oral arguments in two § 16(b)
cases, this Court vacated the judgments in a number of other
§16(b) cases, remanding them for further consideration
in light of ACCA decisions. Pp. 21-24.
Justice Kagan, joined by Justice Ginsburg, Justice Breyer,
and JUSTICE SOTOMAYOR, concluded in Parts II and IV-A:
(a) The
Government argues that a more permissive form of the
void-for-vagueness doctrine applies than the one
Johnson employed because the removal of an alien is
a civil matter rather than a criminal case. This Court's
precedent forecloses that argument. In Jordan v. De
George, 341 U.S. 223, the Court considered what
vagueness standard applied in removal cases and concluded
that, "in view of the grave nature of deportation,
" the most exacting vagueness standard must apply.
Id., at 231. Nothing in the ensuing years calls that
reasoning into question. This Court has reiterated that
deportation is "a particularly severe penalty, "
which may be of greater concern to a convicted alien than
"any potential jail sentence." Jae Lee v.
United States, 582 U.S. ___, ___. Pp. 4-6.
(b)
Section 16(b) demands a categorical, ordinary-case approach.
For reasons expressed in Johnson, that approach
cannot be abandoned in favor of a conduct-based approach,
which asks about the specific way in which a defendant
committed a crime. To begin, the Government once again
"has not asked [the Court] to abandon the categorical
approach in residual-clause cases, " suggesting the
fact-based approach is an untenable interpretation of
§16(b). 576 U.S., at ___. Moreover, a fact-based
approach would generate constitutional questions. In any
event, §16(b)'s text demands a categorical approach.
This Court's decisions have consistently understood
language in the residual clauses of both ACCA and §16 to
refer to "the statute of conviction, not to the facts of
each defendant's conduct." Taylor v. United
States, 495 U.S. 575, 601. And the words "by its
nature" in § 16(b) even more clearly compel an
inquiry into an offense's normal and characteristic
quality-that is, what the offense ordinarily entails.
Finally, given the daunting difficulties of accurately
"re-construct[ing], " often many years later,
"the conduct underlying [a] conviction, " the
conduct-based approach's "utter
impracticability"- and associated inequities-is as great
in § 16(b) as in ACCA. Johnson, 576 U.S., at
___. Pp. 12-15.
JUSTICE Gorsuch, agreeing that the Immigration and
Nationality Act provision at hand is unconstitutionally vague
for the reasons identified in Johnson v. United
States, 576 U.S., concluded that the void for vagueness
doctrine, at least properly conceived, serves as a faithful
expression of ancient due process and separation of powers
principles the Framers recognized as vital to ordered liberty
under the Constitution. The Government's argument that a
less-than-fair-notice standard should apply where (as here) a
person faces only civil, not criminal, consequences from a
statute's operation is unavailing. In the criminal
context, the law generally must afford "ordinary people
. . . fair notice of the conduct it punishes, "
id., at, and it is hard to see how the Due Process
Clause might often require any less than that in the civil
context. Nor is there any good reason to single out civil
deportation for assessment under the fair notice standard
because of the special gravity of its penalty when so many
civil laws impose so many similarly severe sanctions.
Alternative approaches that do not concede the propriety of
the categorical ordinary case analysis are more properly
addressed in another case, involving either the Immigration
and Nationality Act or another statute, where the parties
have a chance to be heard. Pp. 1-19.
KAGAN,
J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, III, IV-B, and
V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ.,
joined, and an opinion with respect to Parts II and IV-A, in
which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
KAGAN
JUSTICE.
JUSTICE Kagan announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I,
III, IV-B, and V, and an opinion with respect to Parts II and
IV-A, in which JUSTICE GINSBURG, JUSTICE Breyer, and Justice
Sotomayor join.
Three
Terms ago, in Johnson v. United States, this Court
held that part of a federal law's definition of
"violent felony" was impermissibly vague. See 576
U.S. (2015). The question in this case is whether a similarly
worded clause in a statute's definition of "crime of
violence" suffers from the same constitutional defect.
Adhering to our analysis in Johnson, we hold that it
does.
I
The
Immigration and Nationality Act (INA) renders deportable any
alien convicted of an "aggravated felony" after
entering the United States. 8 U.S.C.
§1227(a)(2)(A)(iii). Such an alien is also ineligible
for cancellation of removal, a form of discretionary relief
allowing some deportable aliens to remain in the country. See
§§1229b(a)(3), (b)(1)(C). Accordingly, removal is a
virtual certainty for an alien found to have an aggravated
felony conviction, no matter how long he has previously
resided here.
The INA
defines "aggravated felony" by listing numerous
offenses and types of offenses, often with cross-references
to federal criminal statutes. §1101(a)(43); see Luna
Torres v. Lynch, 578 U.S.___, ___ (2016) (slip op., at
2). According to one item on that long list, an aggravated
felony includes "a crime of violence (as defined in
section 16 of title 18 ...) for which the term of
imprisonment [is] at least one year."
§1101(a)(43)(F). The specified statute, 18 U.S.C.
§16, provides the federal criminal code's definition
of "crime of violence." Its two parts, often known
as the elements clause and the residual clause, cover:
"(a) an offense that has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, or
"(b) any other offense that is a felony and 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."
Section
16(b), the residual clause, is the part of the statute at
issue in this case.
To
decide whether a person's conviction "falls within
the ambit" of that clause, courts use a distinctive form
of what we have called the categorical approach. Leocal
v. Ashcroft, 543 U.S. 1, 7 (2004). The question, we have
explained, is not whether "the particular facts"
underlying a conviction posed the substantial risk that
§ 16(b) demands. Ibid. Neither is the question
whether the statutory elements of a crime require (or entail)
the creation of such a risk in each case that the crime
covers.[1] The § 16(b) inquiry instead turns on
the "nature of the offense" generally speaking.
Ibid, (referring to §16(b)'s "by its
nature" language). More precisely, § 16(b) requires
a court to ask whether "the ordinary case" of an
offense poses the requisite risk. James v. United
States, 550 U.S. 192, 208 (2007); see infra, at
7.
In the
case before us, Immigration Judges employed that analysis to
conclude that respondent James Dimaya is deportable as an
aggravated felon. A native of the Philippines, Dimaya has
resided lawfully in the United States since 1992. But he has
not always acted lawfully during that time. Twice, Dimaya was
convicted of first-degree burglary under California law. See
Cal. Penal Code Ann. §§459, 460(a). Following his
second offense, the Government initiated a removal proceeding
against him. Both an Immigration Judge and the Board of
Immigration Appeals held that California first-degree
burglary is a "crime of violence" under §
16(b). "[B]y its nature, " the Board reasoned, the
offense "carries a substantial risk of the use of
force." App. to Pet. for Cert. 46a. Dimaya sought review
in the Court of Appeals for the Ninth Circuit.
While
his appeal was pending, this Court held unconstitutional part
of the definition of "violent felony" in the Armed
Career Criminal Act (ACCA), 18 U.S.C. §924(e). ACCA
prescribes a 15-year mandatory minimum sentence if a person
convicted of being a felon in possession of a firearm has
three prior convictions for a "violent felony."
§924(e)(1). The definition of that statutory term goes
as follows:
"any crime punishable by imprisonment for a term
exceeding one year . . . that-
"(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or "
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to
another." §924(e)(2)(B) (emphasis added).
The
italicized portion of that definition (like the similar
language of § 16(b)) came to be known as the
statute's residual clause. In Johnson v. United
States, the Court declared that clause "void for
vagueness" under the Fifth Amendment's Due Process
Clause. 576 U.S., at ___ - ___ (slip op., at 13-14).
Relying
on Johnson, the Ninth Circuit held that §
16(b), as incorporated into the INA, was also
unconstitutionally vague, and accordingly ruled in
Dimaya's favor. See Di-maya v. Lynch, 803 F.3d
1110, 1120 (2015). Two other Circuits reached the same
conclusion, but a third distinguished ACCA's residual
clause from §16's.[2] We granted certiorari to resolve
the conflict. Lynch v. Dimaya, 579 U.S.___ (2016).
II
"The
prohibition of vagueness in criminal statutes, " our
decision in Johnson explained, is an
"essential" of due process, required by both
"ordinary notions of fair play and the settled rules of
law." 576 U.S., at___ (slip op., at 4) (quoting
Connally v. General Constr. Co., 269 U.S. 385, 391
(1926)). The void-for-vagueness doctrine, as we have called
it, guarantees that ordinary people have "fair
notice" of the conduct a statute proscribes.
Papachristou v. Jacksonville, 405 U.S. 156, 162
(1972). And the doctrine guards against arbitrary or
discriminatory law enforcement by insisting that a statute
provide standards to govern the actions of police officers,
prosecutors, juries, and judges. See Kolender v.
Lawson, 461 U.S. 352, 357-358 (1983). In that sense, the
doctrine is a corollary of the separation of powers-requiring
that Congress, rather than the executive or judicial branch,
define what conduct is sanctionable and what is not. Cf.
id., at 358, n. 7 ("[I]f the legislature could
set a net large enough to catch all possible offenders, and
leave it to the courts to step inside and say who could be
rightfully detained, [it would] substitute the judicial for
the legislative department" (internal quotation marks
omitted)).
The
Government argues that a less searching form of the
void-for-vagueness doctrine applies here than in
Johnson because this is not a criminal case. See
Brief for Petitioner 13-15. As the Government notes, this
Court has stated that "[t]he degree of vagueness that
the Constitution [allows] depends in part on the nature of
the enactment": In particular, the Court has
"expressed greater tolerance of enactments with civil
rather than criminal penalties because the consequences of
imprecision are qualitatively less severe." Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498-499 (1982). The removal of an alien is a civil
matter. See Arizona v. United States, 567 U.S. 387,
396 (2012). Hence, the Government claims, the need for
clarity is not so strong; even a law too vague to support a
conviction or sentence may be good enough to sustain a
deportation order. See Brief for Petitioner 25-26.
But
this Court's precedent forecloses that argument, because
we long ago held that the most exacting vagueness standard
should apply in removal cases. In Jordan v. De
George, we considered whether a provision of immigration
law making an alien deportable if convicted of a "crime
involving moral turpitude" was "sufficiently
definite." 341 U.S. 223, 229 (1951). That provision, we
noted, "is not a criminal statute" (as § 16(b)
actually is). Id., at 231; supra, at 1-2.
Still, we chose to test (and ultimately uphold) it
"under the established criteria of the 'void for
vagueness' doctrine" applicable to criminal laws.
341 U.S., at 231. That approach was demanded, we explained,
"in view of the grave nature of deportation, "
ibid.-a "drastic measure, " often
amounting to lifelong "banishment or exile, "
ibid, (quoting Fong Haw Tan v. Phelan, 333
U.S. 6, 10 (1948)).
Nothing
in the ensuing years calls that reasoning into question. To
the contrary, this Court has reiterated that deportation is
"a particularly severe penalty, " which may be of
greater concern to a convicted alien than "any potential
jail sentence." Jae Lee v. United States, 582
U.S. ___, ___ (2017) (slip op., at 11) (quoting Padilla
v. Kentucky, 559 U.S. 356, 365, 368 (2010)). And we have
observed that as federal immigration law increasingly hinged
deportation orders on prior convictions, removal proceedings
became ever more "intimately related to the criminal
process." Chaidez v. United States, 568 U.S.
342, 352 (2013) (quoting Padilla, 559 U.S., at 365).
What follows, as Jordan recognized, is the use of
the same standard in the two settings.
For
that reason, the Government cannot take refuge in a more
permissive form of the void-for-vagueness doctrine than the
one Johnson employed. To salvage §16's
residual clause, even for use in immigration hearings, the
Government must instead persuade us that it is materially
clearer than its now-invalidated ACCA counterpart. That is
the issue we next address, as guided by Johnsons
analysis.
III
Johnson
is a straightforward decision, with equally straightforward
application here. Its principal section begins as follows:
"Two features of [ACCA's] residual clause conspire
to make it unconstitutionally vague." 576 U.S., at
___(slip op., at 5). The opinion then identifies each of
those features and explains how their joinder produced
"hopeless indeterminacy, " inconsistent with due
process. Id., at ___ (slip op., at 7). And with that
reasoning, Johnson effectively resolved the case now
before us. For §16's residual clause has the same
two features as ACCA's, combined in the same
constitutionally problematic way. Consider those two, just as
Johnson described them:
"In
the first place, " Johnson explained,
ACCA's residual clause created "grave uncertainty
about how to estimate the risk posed by a crime" because
it "tie[d] the judicial assessment of risk" to a
hypothesis about the crime's "ordinary case."
Id., at ___ (slip op., at 5). Under the clause, a
court focused on neither the "real-world facts" nor
the bare "statutory elements" of an offense.
Ibid. Instead, a court was supposed to
"imagine" an "idealized ordinary case of the
crime"-or otherwise put, the court had to identify the
"kind of conduct the 'ordinary case' of a crime
involves." Ibid. But how, Johnson
asked, should a court figure that out? By using a
"statistical analysis of the state reporter? A survey?
Expert evidence? Google? Gut instinct?" Ibid,
(internal quotation marks omitted). ACCA provided no
guidance, rendering judicial accounts of the "ordinary
case" wholly "speculative." Ibid.
Johnson gave as its prime example the crime of attempted
burglary. One judge, contemplating the "ordinary case,
" would imagine the "violent encounter" apt to
ensue when a "would-be burglar [was] spotted by a police
officer [or] private security guard." Id., at
___ - ___ (slip op., at 5-6). Another judge would
conclude that "any confrontation" was more
"likely to consist of [an observer's] yelling
'Who's there?' . . . and the burglar's
running away." Id., at ___ (slip op., at 6).
But how could either judge really know? "The residual
clause, " Johnson summarized, "offer[ed]
no reliable way" to discern what the ordinary version of
any offense looked like. Ibid. And without that, no
one could tell how much risk the offense generally posed.
Compounding
that first uncertainty, Johnson continued, was a
second: ACCA's residual clause left unclear what
threshold level of risk made any given crime a "violent
felony." See ibid. The Court emphasized that
this feature alone would not have violated the
void-for-vagueness doctrine: Many perfectly constitutional
statutes use imprecise terms like "serious potential
risk" (as in ACCA's residual clause) or
"substantial risk" (as in §16's). The
problem came from layering such a standard on top of the
requisite "ordinary case" inquiry. As the Court
explained:
"[W]e do not doubt the constitutionality of laws that
call for the application of a qualitative standard such as
'substantial risk' to real-world conduct; the law is
full of instances where a man's fate depends on his
estimating rightly . . . some matter of degree[.] The
residual clause, however, requires application of the
'serious potential risk' standard to an idealized
ordinary case of the crime. Because the elements necessary to
determine the imaginary ideal are uncertain[, ] this abstract
inquiry offers significantly less predictability than one
that deals with the actual . . . facts." Id.,
at ___ (slip op., at 12) (some internal quotation marks,
citations, and alterations omitted).
So much
less predictability, in fact, that ACCA's residual clause
could not pass constitutional muster. As the Court again put
the point, in the punch line of its decision: "By
combining indeterminacy about how to measure the risk posed
by a crime with indeterminacy about how much risk it takes
for the crime to qualify as a violent felony, the residual
clause" violates the guarantee of due process.
Id., at ___ (slip op., at 6).[3]
Section
16's residual clause violates that promise in just the
same way. To begin where Johnson did, § 16(b)
also calls for a court to identify a crime's
"ordinary case" in order to measure the crime's
risk. The Government explicitly acknowledges that point here.
See Brief for Petitioner 11 ("Section 16(b), like
[ACCA's] residual clause, requires a court to assess the
risk posed by the ordinary case of a particular
offense"). And indeed, the Government's briefing in
Johnson warned us about that likeness, observing
that § 16(b) would be "equally susceptible to [an]
objection" that focused on the problems of positing a
crime's ordinary case. Supp. Brief for Respondent, O. T.
2014, No. 13-7120, pp. 22-23. Nothing in §16(b) helps
courts to perform that task, just as nothing in ACCA did. We
can as well repeat here what we asked in Johnson:
How does one go about divining the conduct entailed in a
crime's ordinary case? Statistical analyses? Surveys?
Experts? Google? Gut instinct? See Johnson, 576
U.S., at ___ (slip op., at 5); supra, at 7;
post, at 16-17 (GORSUCH, J., concurring in part and
concurring in judgment). And we can as well reiterate
Johnsons example: In the ordinary case of attempted
burglary, is the would-be culprit spotted and confronted, or
scared off by a yell? See post, at 16 (opinion of
GORSUCH, J.) (offering other knotty examples). Once again,
the questions have no good answers; the "ordinary
case" remains, as Johnson described it, an
excessively "speculative, " essentially inscrutable
thing. 576 U.S., at ___ (slip op., at 5); accord
post, at 27 (THOMAS, J., dissenting).[4]
And
§ 16(b) also possesses the second fatal feature of
ACCA's residual clause: uncertainty about the level of
risk that makes a crime "violent." In ACCA, that
threshold was "serious potential risk"; in §
16(b), it is "substantial risk." See
supra, at 2, 4. But the Government does not argue
that the latter formulation is any more determinate than the
former, and for good reason. As THE CHIEF Justice's
valiant attempt to do so shows, that would be slicing the
baloney mighty thin. See post, at 5-6 (dissenting
opinion). And indeed, Johnson as much as equated the
two phrases: Return to the block quote above, and note how
Johnson-as though anticipating this case-refers to
them interchangeably, as alike examples of imprecise
"qualitative standard[s]." See supra, at
8; 576 U.S., at ___ (slip op., at 12). Once again, the point
is not that such a non-numeric standard is alone problematic:
In Johnsons words, "we do not doubt" the
constitutionality of applying §16(b)'s
"substantial risk [standard] to real-world
conduct." Id., at ___(slip op., at 12)
(internal quotation marks omitted). The difficulty comes, in
§16's residual clause just as in ACCA's, from
applying such a standard to "a judge-imagined
abstraction"-i.e., "an idealized ordinary
case of the crime." Id., at ___, ___(slip op.,
at 6, 12). It is then that the standard ceases to work in a
way consistent with due process.
In sum,
§ 16(b) has the same "[t]wo features" that
"conspire[d] to make [ACCA's residual clause]
unconstitutionally vague." Id., at___ (slip
op., at 5). It too "requires a court to picture the kind
of conduct that the crime involves in 'the ordinary case,
' and to judge whether that abstraction presents"
some not-well-specified-yet-sufficiently-large degree of
risk. Id., at___ (slip op., at 4). The result is
that § 16(b) produces, just as ACCA's residual
clause did, "more unpredictability and arbitrariness
than the Due Process Clause tolerates." Id.,
at___ (slip op., at 6).
IV
The
Government and dissents offer two fundamentally different
accounts of how § 16(b) can escape unscathed from our
decision in Johnson. JUSTICE THOMAS accepts that the
ordinary-case inquiry makes § 16(b) "impossible to
apply." Post, at 27. His solution is to
overthrow our historic understanding of the statute: We
should now read § 16(b), he says, to ask about the risk
posed by a particular defendant's particular conduct. In
contrast, the Government, joined by THE CHIEF JUSTICE,
accepts that § 16(b), as long interpreted, demands a
categorical approach, rather than a case-specific one. They
argue only that "distinctive textual features" of
§16's residual clause make applying it "more
predictable" than its ACCA counterpart. Brief for
Petitioner 28, 29. We disagree with both arguments.
A
The
essentials of Justice Thomas's position go as follows.
Section 16(b), he says, cannot have one meaning, but could
have one of two others. See post, at 27. The
provision cannot demand an inquiry merely into the elements
of a crime, because that is the province of § 16(a). See
supra, at 2 (setting out §16(a)'s text).
But that still leaves a pair of options: the categorical,
ordinary-case approach and the "underlying-conduct
approach, " which asks about the specific way in which a
defendant committed a crime. Post, at 25. According
to JUSTICE THOMAS, each option is textually viable (although
he gives a slight nod to the latter based on
§16(b)'s use of the word "involves"). See
post, at 24-26. What tips the scales is that only
one-the conduct approach-is at all "workable."
Post, at 27. The difficulties of the ordinary-case
inquiry, Justice Thomas rightly observes, underlie this
Court's view that § 16(b) is too vague. So abandon
that inquiry, Justice Thomas urges. After all, he reasons, it
is the Court's "plain duty, " under the
constitutional avoidance canon, to adopt any reasonable
construction of a statute that escapes constitutional
problems. Post, at 28-29 (quoting United States
ex rel. Attorney General v. Delaware & Hudson Co.,
213 U.S. 366, 407 (1909)).
For
anyone who has read Johnson, that argument will ring
a bell. The dissent there issued the same invitation, based
on much the same reasoning, to jettison the categorical
approach in residual-clause cases. 576 U.S., at___ - ___(slip
op., at 9-13) (opinion of ALITO, J.). The Court declined to
do so. It first noted that the Government had not asked us to
switch to a fact-based inquiry. It then observed that the
Court "had good reasons" for originally adopting
the categorical approach, based partly on ACCA's text
(which, by the way, uses the word "involves"
identically) and partly on the "utter
impracticability" of the alternative. Id.,
at___ (slip op., at 13) (majority opinion). "The only
plausible interpretation" of ACCA's residual clause,
we concluded, "requires use of the categorical
approach"- even if that approach could not in the end
satisfy constitutional standards. Ibid, (internal
quotation marks and alteration omitted).
The
same is true here-except more so. To begin where
Johnson did, the Government once again "has not
asked us to abandon the categorical approach in
residual-clause cases." Ibid. To the contrary,
and as already noted, the Government has conceded at every
step the correctness of that statutory construction. See
supra, at 9. And this time, the Government's
decision is even more noteworthy than before-precisely
because the Johnson dissent laid out the opposite
view, presenting it in prepackaged form for the Government to
take off the shelf and use in the § 16(b) context. Of
course, we are not foreclosed from going down Justice
Thomas's path just because the Government has not done
so. But we find it significant that the Government cannot
bring itself to say that the fact-based approach JUSTICE
THOMAS proposes is a tenable interpretation of §16's
residual clause.
Perhaps
one reason for the Government's reluctance is that such
an approach would generate its own constitutional questions.
As JUSTICE THOMAS relates, post, at 22, 28, this
Court adopted the categorical approach in part to
"avoid[ ] the Sixth Amendment concerns that would arise
from sentencing courts' making findings of fact that
properly belong to juries." Descamps v. United
States, 570 U.S. 254, 267 (2013). Justice Thomas thinks
that issue need not detain us here because "the right of
trial by jury ha[s] no application in a removal
proceeding." Post, at 28 (internal quotation
marks omitted). But although this particular case involves
removal, § 16(b) is a criminal statute, with criminal
sentencing consequences. See supra, at 2. And this
Court has held (it could hardly have done otherwise) that
"we must interpret the statute consistently, whether we
encounter its application in a criminal or noncriminal
context." Leocal, 543 U.S., at 12, n. 8. So
Justice Thomas's suggestion would merely ping-pong us
from one constitutional issue to another. And that means the
avoidance canon cannot serve, as he would like, as the
interpretive tie breaker.
In any
event, §16(b)'s text creates no draw: Best read, it
demands a categorical approach. Our decisions have
consistently understood language in the residual clauses of
both ACCA and §16 to refer to "the statute of
conviction, not to the facts of each defendant's
conduct." Taylor v. United States, 495 U.S.
575, 601 (1990); see Leocal, 543 U.S., at 7 (Section
16 "directs our focus to the 'offense' of
conviction . . . rather than to the particular facts").
Simple references to a "conviction, " "felony,
" or "offense, " we have stated, are
"read naturally" to denote the "crime as
generally committed." Nijhawan v.
Holder, 557 U.S. 29, 34 (2009); see Leocal, 543
U.S., at 7; Johnson, 576 U.S., at ___(slip op., at
13). And the words "by its nature" in § 16(b)
make that meaning all the clearer. The statute, recall,
directs courts to consider whether an offense, by its
nature, poses the requisite risk of force. An
offense's "nature" means its "normal and
characteristic quality." Webster's Third New
International Dictionary 1507 (2002). So § 16(b) tells
courts to figure out what an offense normally-or, as we have
repeatedly said, "ordinarily"- entails, not what
happened to occur on one occasion. And the same conclusion
follows if we pay attention to language that is
missing from §16(b). As we have observed in the
ACCA context, the absence of terms alluding to a crime's
circumstances, or its commission, makes a fact-based
interpretation an uncomfortable fit. See Descamps,
570 U.S., at 267. If Congress had wanted judges to look into
a felon's actual conduct, "it presumably would have
said so; other statutes, in other contexts, speak in just
that way." Id., at 267-268.[5] The upshot of all
this textual evidence is that §16's residual
clause-like ACCA's, except still more plainly-has no
"plausible" fact-based reading. Johnson,
576 U.S., at ___ (slip op., at 13).
And
finally, the "utter impracticability"-and
associated inequities-of such an interpretation is as great
in the one statute as in the other. Ibid. This Court
has often described the daunting difficulties of accurately
"reconstruct[ing], " often many years later,
"the conduct underlying [a] conviction." Ibid.;
Descamps, 570 U.S., at 270; Taylor, 495 U.S.,
at 601-602. According to JUSTICE THOMAS, we need not worry
here because immigration judges have some special factfinding
talent, or at least experience, that would mitigate the risk
of error attaching to that endeavor in federal courts. See
post, at 30. But we cannot see putting so much
weight on the superior fact-finding prowess of (notoriously
overburdened) immigration judges. And as we have said before,
§ 16(b) is a criminal statute with applications outside
the immigration context. See supra, at 2, 13. Once
again, then, we have no ground for discovering a novel
interpretation of § 16(b) that would remove us from the
dictates of Johnson.
B
Agreeing
that is so, the Government (joined by THE Chief Justice)
takes a narrower path to the same desired result. It points
to three textual discrepancies between ACCA's residual
clause and § 16(b), and argues that they make §
16(b) significantly easier to apply. But each turns out to be
the proverbial distinction without a difference. None relates
to the pair of features-the ordinary-case inquiry and a hazy
risk threshold-that Johnson found to produce
impermissible vagueness. And none otherwise affects the
determinacy of the statutory inquiry into whether a prior
conviction is for a violent crime. That is why, contrary to
the Government's final argument, the experience of
applying both statutes has generated confusion and
division among lower courts.
1
The
Government first-and foremost-relies on §16(b)'s
express requirement (absent from ACCA) that the risk arise
from acts taken "in the course of committing the
offense." Brief for Petitioner 31. (THE CHIEF
Justice's dissent echoes much of this argument. See
post, at 6-7.) Because of that "temporal
restriction, " a court applying § 16(b) may not
"consider risks arising after" the
offense's commission is over. Ibid. In the
Government's view, §16(b)'s text thereby demands
a "significantly more focused inquiry" than did
ACCA's residual clause. Id., at 32.
To
assess that claim, start with the meaning of
§16(b)'s "in the course of" language. That
phrase, understood in the normal way, includes the conduct
occurring throughout a crime's commission-not just the
conduct sufficient to satisfy the offense's formal
elements. The Government agrees with that construction,
explaining that the words "in the course of" sweep
in everything that happens while a crime continues. See Tr.
of Oral Arg. 57-58 (Oct. 2, 2017) (illustrating that idea
with reference to conspiracy, burglary, kidnapping, and
escape from prison). So, for example, conspiracy may be a
crime of violence under § 16(b) because of the risk of
force while the conspiracy is ongoing (i.e.,
"in the course of" the conspiracy); it is
irrelevant that conspiracy's elements are met as soon as
the participants have made an agreement. See ibid.;
United States v. Doe, 49 F.3d 859, 866 (CA2 1995).
Similarly, and closer to home, burglary may be a crime of
violence under § 16(b) because of the prospects of an
encounter while the burglar remains in a building
(i.e., "in the course of" the burglary);
it does not matter that the elements of the crime are met at
the precise moment of his entry. See Tr. of Oral Arg. 57-58
(Oct. 2, 2017); James, 550 U.S., at 203. In other
words, a court applying § 16(b) gets to consider
everything that is likely to take place for as long as a
crime is being committed.
Because
that is so, §16(b)'s "in the course of"
language does little to narrow or focus the statutory
inquiry. All that the phrase excludes is a court's
ability to consider the risk that force will be used after
the crime has entirely concluded-so, for example, after the
conspiracy has dissolved or the burglar has left the
building. We can construct law-school-type hypotheticals
fitting that fact pattern-say, a burglar who constructs a
booby trap that later knocks out the homeowner. But such
imaginative forays cannot realistically affect a court's
view of the ordinary case of a crime, which is all
that matters under the statute. See supra, at 2-3,
7. In the ordinary case, the riskiness of a crime arises from
events occurring during its commission, not events occurring
later. So with or without §16(b)'s explicit temporal
language, a court applying the section would do the same
thing-ask what usually happens when a crime goes down.
And
that is just what courts did when applying ACCA's
residual clause-and for the same reason. True, that clause
lacked an express temporal limit. But not a single one of
this Court's ACCA decisions turned on conduct that might
occur after a crime's commission; instead, each hinged on
the risk arising from events that could happen while the
crime was ongoing. See, e.g., Sykes v. United
States, 564 U.S. 1, 10 (2011) (assessing the risks
attached to the "confrontations that initiate and
terminate" vehicle flight, along with
"intervening" events); Chambers v. United
States, 555 U.S. 122, 128 (2009) (rejecting the
Government's argument that violent incidents
"occur[ring] long after" a person unlawfully failed
to report to prison rendered that crime a violent felony).
Nor could those decisions have done otherwise, given the
statute's concern with the ordinary (rather than the
outlandish) case. Once again, the riskiness of a crime in the
ordinary case depends on the acts taken during-not after-its
commission. Thus, the analyses under ACCA's residual
clause and § 16(b) coincide.
The
upshot is that the phrase "in the course of" makes
no difference as to either outcome or clarity. Every offense
that could have fallen within ACCA's residual clause
might equally fall within §16(b). And the difficulty of
deciding whether it does so remains just as intractable.
Indeed, we cannot think of a single federal crime whose
treatment becomes more obvious under § 16(b) than under
ACCA because of the words "in the course
of."[6] The phrase, then, cannot cure the
statutory indeterminacy Johnson described.
Second,
the Government (and again, THE CHIEF Justice's dissent,
see post, at 6) observes that § 16(b) focuses
on the risk of "physical force" whereas ACCA's
residual clause asked about the risk of "physical
injury." The § 16(b) inquiry, the Government says,
"trains solely" on the conduct typically involved
in a crime. Brief for Petitioner 36. By contrast, the
Government continues, ACCA's residual clause required a
second inquiry: After describing the ordinary criminal's
conduct, a court had to "speculate about a chain of
causation that could possibly result in a victim's
injury." Ibid. The Government's conclusion
is that the § 16(b) inquiry is "more
specific." Ibid.
But
once more, we struggle to see how that statutory distinction
would matter. To begin with, the first of the
Government's two steps-defining the conduct in the
ordinary case-is almost always the difficult part. Once that
is accomplished, the assessment of consequences tends to
follow as a matter of course. So, for example, if a crime is
likely enough to lead to a shooting, it will also be likely
enough to lead to an injury. And still more important, §
16(b) involves two steps as well-and essentially the same
ones. In interpreting statutes like § 16(b), this Court
has made clear that "physical force" means
"force capable of causing physical pain or injury."
Johnson v. United States, 559 U.S. 133, 140 (2010)
(defining the term for purposes of deciding what counts as a
"violent" crime). So under § 16(b) too, a
court must not only identify the conduct typically involved
in a crime, but also gauge its potential consequences. Or
said a bit differently, evaluating the risk of "physical
force" itself entails considering the risk of
"physical injury." For those reasons, the
force/injury distinction is unlikely to affect a court's
analysis of whether a crime qualifies as violent. All the
same crimes might-or, then again, might not-satisfy both
requirements. Accordingly, this variance in wording cannot
make ACCA's residual clause vague and § 16(b) not.
Third,
the Government briefly notes that § 16(b), unlike
ACCA's residual clause, is not preceded by a
"confusing list of exemplar crimes." Brief for
Petitioner 38. (THE Chief Justice's dissent reiterates
this argument, with some additional references to our
caselaw. See post, at 10-12.) Here, the Government
is referring to the offenses ACCA designated as violent
felonies independently of the residual clause (i.e.,
burglary, arson, extortion, and use of explosives). See
supra, at 4. According to the Government, those
crimes provided "contradictory and opaque
indications" of what non-specified offenses should also
count as violent. Brief for Petitioner 38. Because §
16(b) lacks any such enumerated crimes, the Government
concludes, it avoids the vagueness of ACCA's residual
clause.
We
readily accept a part of that argument. This Court for
several years looked to ACCA's listed crimes for help in
giving the residual clause meaning. See, e.g., Begay v.
United States, 553 U.S. 137, 142 (2008); James,
550 U.S., at 203. But to no avail. As the Government relates
(and Johnson explained), the enumerated crimes were
themselves too varied to provide such assistance. See Brief
for Petitioner 38-40; 576 U.S., at(slip op., at 12). Trying
to reconcile them with each other, and then compare them to
whatever unlisted crime was at issue, drove many a judge a
little batty. And more to the point, the endeavor failed to
bring any certainty to the residual clause's application.
See Brief for Petitioner 38-40.
But the
Government's conclusion does not follow. To say that
ACCA's listed crimes failed to resolve the residual
clause's vagueness is hardly to say they caused the
problem. Had they done so, Johnson would not have
needed to strike down the clause. It could simply have
instructed courts to give up on trying to interpret the
clause by reference to the enumerated offenses. (Contrary to
THE CHIEF Justice's suggestion, see post, at 12,
discarding an interpretive tool once it is found not to
actually aid in interpretation hardly "expand[s]"
the scope of a statute.) That Johnson went so much
further-invalidating a statutory provision rather than
construing it independently of another-demonstrates that the
list of crimes was not the culprit. And indeed,
Johnson explicitly said as much. As described
earlier, Johnson found the residual clause's
vagueness to reside in just "two" of its features:
the ordinary-case requirement and a fuzzy risk standard. See
576 U.S., at - (slip op., at 5-6); supra,
at 7-8. Strip away the enumerated crimes-as Congress did in
§ 16(b)-and those dual flaws yet remain. And ditto the
textual indeterminacy that flows from them.
2
Faced
with the two clauses' linguistic similarity, the
Government relies significantly on an argument rooted in
judicial experience. Our opinion in Johnson, the
Government notes, spoke of the longstanding
"trouble" that this Court and others had in
"making sense of [ACCA's] residual clause." 576
U.S., at ___ (slip op., at 9); see Brief for Petitioner 45.
According to the Government, § 16(b) has not produced
"comparable difficulties." Id., at 46.
Lower courts, the Government claims, have divided less often
about the provision's meaning, and as a result this Court
granted certiorari on "only a single Section 16(b)
case" before this one. Ibid.[7] "The most
likely explanation, " the Government concludes, is that
"Section 16(b) is clearer" than its ACCA
counterpart. Id., at 47.
But in
fact, a host of issues respecting §16(b)'s
application to specific crimes divide the federal appellate
courts. Does car burglary qualify as a violent felony under
§ 16(b)? Some courts say yes, another says
no.[8]
What of statutory rape? Once again, the Circuits part
ways.[9] How about evading arrest? The decisions
point in different directions.[10] Residential trespass? The same
is true.[11] Those examples do not exhaust the
current catalogue of Circuit conflicts concerning
§16(b)'s application. See Brief for National
Immigration Project of the National Lawyers Guild et al. as
Amici Curiae 7-18 (citing divided appellate
decisions as to the unauthorized use of a vehicle, firearms
possession, and abduction). And that roster would just expand
with time, mainly because, as Joh ...