In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), Justice Gorsuch provided the essential fifth vote to affirm a finding that the “residual clause” of the Armed Career Criminal Act was too vague to be applied in a deportation case. The residual clause defined a “crime of violence” as including “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.” A crime constituting a crime of violence was deemed an “aggravated felony” requiring deportation and rendering a non-citizen ineligible for almost all forms of relief.
Justice Gorsuch’s concurring opinion contains at least two points important for the law of collateral consequences. First, he is much more concerned with the seriousness of the deprivation rather than its categorization as civil or criminal when evaluating how much process is required under the Constitution. Unimpressed with the line of cases that treated deportation as quasi-criminal, he notes:
grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.
Id. at 1231 (Gorsuch J., concurring).1
His solution is to level up the process due (in this case, the necessary degree of specificity required of statutory provisions) in civil cases, rather than level down criminal protections: “any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.” Id. at 1229.
A second interesting point is his guidance for legislatures about how penalty clauses like the one at issue could be drafted. He notes that “the statute here fails to specify which crimes qualify for [the label of crime of violence],” id. at 1231, and that “Congress remains free at any time to add more crimes to its list.” Id. at 1233. Many collateral consequence provisions, among other statutes, have the character of the provision voided here: they disqualify based on a quite general description of the crimes that give rise to the consequence (e.g., crimes involving dishonesty), and ask courts or agencies to evaluate specific offenses one at a time to determine whether they fit the categorical criteria. Only after that process of evaluation do we know whether the consequence applies.
Instead of courts or agencies guessing what legislatures had in mind, it would be perfectly practical instead for Congress and state legislatures, when drafting the law in the first instance, to go item by item through the criminal codes, actually determine whether specific provisions should result in disqualification, and provide a list of those triggering crimes in the statute creating the consequence. This is the approach of a recent Kansas statute. If Justice Gorsuch is right that the Constitution is structured to “ensure fair notice before any deprivation of life, liberty, or property could take place,” id. at 1228, this cataloging effort does not seem like too much to ask.