Why should expungement be limited to “nonviolent” crimes? Dissecting the REDEEM Act (II)

The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984.  As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet.  But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.

Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing.  The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.

But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates.  If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief.  The good news is that the necessary fix is a simple one:  rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.

We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent.  Indeed, a wag has described them as catnip for the litigious.

“Covered nonviolent offenses”

The REDEEM Act defines the “covered nonviolent offenses” that are eligible for sealing as any crime that is neither a sex offense listed in 42 U.S.C. § 16911 nor a “crime of violence,” as defined by 18 U.S.C. § 16.  Section 16 provides:

The term “crime of violence” means–


(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,



(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.

The REDEEM Act also provides the following direction to a court considering whether to seal a federal offense:

In determining whether to enter a sealing order . . .the court  . . . may not consider any non-Federal nonviolent crimes for which the petitioner has been arrested or proceeded against, or of which the petitioner has been convicted.

Thus the REDEEM Act offers two occasions for considering (arguing about) whether a crime is violent or nonviolent, once to determine the federal crime’s eligibility, and subsequently to decide whether a federal offender is worthy of sealing relief.  In the first case it is clear that the § 16 definition controls.  It is less clear whether it also controls how a court decides whether a prior state crime is violent or nonviolent, but absent any other referent a court may reasonably conclude that it does.  After all, federal courts are accustomed to considering whether prior state offenses fall within the § 16 definition in a variety of settings, though the question of whether a crime falls within the definition of § 16(b) has never been clearly decided by the Supreme Court.  For example, courts have held that DUI, unlawful possession of a weapon, and breaking and entering an unoccupied building were all crimes of violence under § 16(b).  The courts have since narrowed the scope of subsection (b), and they may narrow it further in light of the Supreme Court case discussed in the following section.  But at this time, the contours of a “crime of violence” remain murky.

In summary, given the uncertain contours of the § 16 definition, whether a particular crime is eligible for sealing will be unclear in many cases and ripe for dispute, and it will also be unclear what prior offenses a court considering a sealing request should take into account.

Johnson v. United States

The full extent of the definitional problems posed by § 16(b) are illuminated in the Supreme Court’s recent decision in Johnson v. United States, which vindicated Justice Scalia’s decade-long crusade to invalidate the “residual clause” of the Armed Career Criminal Act (ACCA).  The ACCA’s residual clause defined the term “violent felony” as any crime that

(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.

18 U.S.C. 924(e)(emphasis added). The problem with the residual clause was that it required federal sentencing courts “to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” Under this “ordinary case” approach, “how an individual offender might have committed it on a particular occasion” was irrelevant.

Specifically, the offense at issue in Johnson was possession of a short-barreled shotgun, so the lower court had to first determine what an ordinary case of possessing such shotgun would look like under the criminal statute defining the offense and then determine the risk of injury posed by that hypothetical ordinary case. The risk of injury posed by Johnson’s specific conduct did not matter.

The majority found the ordinary case inquiry as applied to the residual clause, to be deeply flawed because it called for courts to engage in nothing short of “guesswork.”

In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements.


At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise “serious potential risk” standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction.

These flaws created substantial disagreement among federal courts about how to apply the residual clause and, consequentially, what crimes it encompassed.

This Court is not the only one that has had trouble making sense of the residual clause. The clause has “created numerous splits among the lower federal courts,” where it has proved “nearly impossible to apply consistently.” Chambers . . . . The most telling feature of the lower courts’ decisions is not division about whether the residual clause covers this or that crime (even clear laws produce close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider.

Because the crime-based standard in ACCA’s residual clause had proved itself unworkable, the Court determined that it could not constitutionally be applied to anyone.

The REDEEM Act’s unfair and unworkable eligibility standard 

Section 16(b), and thus the REDEEM Act’s eligibility standard, presents the same problems of overbreadth and vagueness as the ACCA’s residual clause, and nearly all of the criticism that the Johnson Court leveled at the residual clause is directly applicable to § 16(b) (a felony “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”). Like the ACCA’s residual clause, § 16(b) also requires the court to engage in the same “ordinary case” inquiry. In other words, § 16(b) requires the court to speculate about the risk of injury posed by hypothetical ordinary cases. After Johnson, the days of §16(b) may be constitutionally numbered where its application in criminal cases is concerned.

While vagueness concerns would not apply in the REDEEM Act’s civil context, practical vagueness ones would. Courts would still have to apply the definition in § 16(b) to determine in the first instance whether or not a federal crime is eligible for sealing, and whether or not state priors should be considered.

Without revision, the Act’s incorporation of § 16(b) may create a situation in which uncertainty about what constitutes a qualifying crime (or a disqualifying prior) will burden courts and result in many deserving individuals being denied relief.  The people that the Act is meant to help — those who are unemployed or underemployed because they have a criminal record — are among those least capable of shouldering the burden of lengthy and complex court proceedings.

A fairer and more effective approach

Of course, the simplest way to eliminate the uncertainty regarding eligibility and desert in the REDEEM Act is to eliminate the disparate treatment of “violent” and “non-violent” crimes altogether.

Blanket ineligibility for “crimes of violence,” however defined, will disqualify many otherwise deserving individuals, without regard to the particulars of their crime or the risk they present to the public.  The unfairness of excluding such a broad category of crimes is compounded when the record sought to be sealed did not result in a conviction.

While there is a legitimate argument that the records of people likely to repeat prior violent acts should remain available to the public, the Act’s eligibility restrictions are redundant, since it elsewhere gives courts broad discretion to deny relief in a particular cases on public safety grounds.  Why give courts this case-by-case scalpel if the categorical hatchet means they will never have occasion to use it.

Rather than defining vaguely what offenses are eligible, the REDEEM Act could define with precision what offenses are not.  defining with precision which crimes are ineligible as “violent” and which are not.  Indeed, the Act already adopts more precise language in its description of violent juvenile offenses that are ineligible for expungement:

the term “violent crime” means-(A) murder or nonnegligent manslaughter, forcible rape, or robbery, or(B) aggravated assault committed with the use of a firearm

The Act could apply a similar precise and limited exclusion to sealing of adult offenses.

Most states recognize the importance of precisely tailored eligibility standards in their sealing and expungement laws, defining eligible and ineligible offenses by reference to particular criminal statutes or classes of crimes.   See, e.g., Kansas, K.S.A. § 21-6614(e)(ineligible violent offenses specified by citation); New Hampshire, RSA 651:05(XIII)(same);  Alabama, Code of Ala. §§ 15-27-2, 12-25-32(13)(same); ​Colorado, Colo. Rev. Stat. §§ 19-1- 306(7), 19-2-516(3), 18-1.3-406(2)(disqualifying offenses not specified by citation, but must involve bodily harm or deadly weapon).

No state that we know of defines eligible offenses in terms that approach the ambiguity in § 16(b).  If the REDEEM Act must make any offense categorically ineligible, it should follow the approach of most states and define precisely what constitutes an ineligible violent crime, if not by specific citation then by a precise provision like the one in § 16(a) that specifies the elements of a disqualifying violent offense.

You can find the Johnson opinion here, and the text of the REDEEM Act here.