Friday, October 4th, 2019

Second Circuit Panel holds residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness

In today’s United States v. Watkins, No. 18-3076, a panel of the Second Circuit held the residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness.

This may surprise some observers, as the Bail Reform Act’s residual clause is identical to – and subject to the same categorical approach as – the residual clauses the Supreme Court struck down for vagueness in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019).

Moreover, the Second Circuit’s ruling is plainly moot: after being denied bail, Mr. Watkins pleaded guilty and was sentenced to prison.  See United States v. Watkins, W.D.N.Y. No. 18-cr-131.  Only now, months later, has the panel weighed in on whether the residual clause of the “crime of violence” definition in the Bail Reform Act is void for vagueness.  But the answer to that question has no bearing on Mr. Watkins’s case: regardless of whether he was properly denied bail, he decided to plead guilty.  Due to this “intervening event, [the] court of appeals cannot grant ‘any effectual relief whatever.’”  Calderon v. Moore, 518 U.S. 149, 150 (1996) (citation omitted).  “[M]ootness can arise at any stage of litigation,” and “federal courts may not ‘give opinions upon moot questions.’”  Id. (citations omitted).

Mootness aside, the panel’s opinion is at odds with the Supreme Court’s rulings in this area of law.  The panel said the void-for-vagueness rulings in Dimaya and Davis do not apply to the Bail Reform Act because, though the Act mandates pretrial imprisonment in certain cases, pretrial imprisonment “does not constitute ‘punishment’ at all.  Rather, pretrial detention is ‘regulatory in nature’ because it serves a ‘pressing societal problem’ of preventing danger to the community.”

The panel did not square this claim with Dimaya, in which the Supreme Court held “the most exacting vagueness standard [] appl[ies] in removal cases” even though such cases are civil and impose no “punishment” in the criminal sense.  138 S. Ct. at 1213.  If the prospect of being sent out of this country is enough to warrant close review for vagueness, it is difficult to see why the same rule does not apply to the prospect of being imprisoned in this country.

In addition, immigrants with a “crime of violence” prior are not necessarily expelled, see id. at 1210 (they are “deportable”), whereas defendants eligible for pretrial detention (because they are a flight risk or possible danger to the public) must be jailed if they are charged with a “crime of violence.”  For such defendants, that is the deciding factor: the “crime of violence” charge mandates their imprisonment.  See 18 U.S.C. § 3142(e) (“If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.”) (emphasis added).

Thus, the Bail Reform Act’s residual clause operates to mandate imprisonment.  The Supreme Court has invalidated two other residual clauses that mandated imprisonment: a clause textually identical to the one in the Bail Reform Act, see Davis, and a clause materially identical to the one in the Bail Reform Act.  See Johnson v. United States, 135 S. Ct. 2551 (2015).  The only pass the Court has given to a residual clause was in Beckles v. United States, 137 S. Ct. 886 (2017), where the Court found no vagueness problem with the residual clause of the advisory Career Offender Guideline because that clause “merely guide[d] the district courts’ discretion.”  137 S. Ct. at 894.  But when it comes to the Bail Reform Act, that statute – like the ones in Davis and Johnson – mandates imprisonment.

It is thus unclear whether the Second Circuit panel’s ruling will endure.  If for no other reason, its mootness means it should be withdrawn.

Comments are closed.