VIOLENCE AGAINST PROPERTY: THE BREAKING POINT OF FEDERAL CRIME OF VIOLENCE CLASSIFICATIONS

The federal criminal code provides enhanced penalties for offenses that qualify as crimes of violence. This Note concerns a basic question: What qualifies as a crime of violence? The code offers two seemingly clear definitions, classifying as violent any crime that either (1) includes the use of physical force against the person or property of another as an element of the crime or (2) by its nature involves a substantial risk of the use of physical force against the person or property of another. However coherent those definitions may appear at first blush, the unfortunate truth is that federal courts have struggled for years to make them work. In fact, the Supreme Court has entirely given up on parsing the second definition, declaring that provision unconstitutionally vague in a pair of decisions from 2018 and 2019. This Note examines whether the first definition should meet the same fate.

In analyzing the first definition’s validity, this Note focuses on one specific aspect: the definition’s reference to property. This Note argues that including property in a force-based definition of violent crime contravenes traditional conceptions of violence, burdens courts with inapt inquiries, leads to incongruous applications of punishment, and violates due process guarantees against vague laws. Existing doctrine suggests that physical force refers to an action that causes harm. But because property damage can result from decidedly nonforceful acts, harm to persons and harm to property are conflicting benchmarks for violence. Physical force thus carries a vague double meaning in the crime-of-violence stat¬ute, one that perversely condemns violence against property more comprehensibly than violence against people. The solution, this Note contends, is to recenter violence classification on human targets.

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* J.D. Candidate 2022, Columbia Law School. The author would like to thank Professor Daniel Richman for his patience and guidance and the staff of the Columbia Law Review for their diligent editorial assistance.

Introduction

When is a crime a violent crime? The question might seem relevant only in the context of impersonal statistics or abstract criminology. But for some defendants, decades of mandatory prison time hang in the balance. In United States federal criminal law, 18 U.S.C. § 924(c) prescribes a five-year minimum sentence for an individual who commits a “crime of violence” while armed. 1 18 U.S.C. § 924(c) (2018). Depending on the type of firearm carried or the existence of prior convictions, the minimum sentence can grow to life in prison. 2 See id. § 924(c)(1)(C)(ii) (mandating a life sentence when “the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler” and the defendant has a prior conviction under 18 U.S.C. § 924(c)). The defendant receives the § 924(c) sentence on top of any punishment already imposed for the predicate crime itself, 3 Id. § 924(c)(1)(A). and the statute explicitly disallows probation and concurrent prison terms. 4 Id. § 924(c)(1)(D). Other parts of the federal criminal law apply similarly severe penalties for violence. The “crime of violence” provision in 18 U.S.C. § 16, for example, in conjunction with the Immigration and Nationality Act, adds deportation to the list of possible penalties for violence. 5 Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018). When a crime is a violent crime, it earns harsh consequences.

Such harsh consequences give great significance to the legal definition of violence. This Note argues that the United States’ definition doesn’t work. In the federal criminal code, an offense qualifies as a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 6 18 U.S.C. § 924(c)(3)(A). Perfectly sensible at first glance, this statutory language gets pushed through a patchwork of court-made doctrine that magnifies the language’s imprecision and turns the sensible into the senseless. This Note is the first to examine the senselessness that newly evolved doctrine can create when it confronts one word from § 924(c)’s violence definition: property. 7 See United States v. Davis, 139 S. Ct. 2319, 2324 (2019). The original definition for “crime of violence” included two parts. See infra section I.B.2. Davis invalidated the second part as unconstitutionally vague. See infra section I.C.2. In doing so, Davis expounded a textual understanding of § 924(c)’s crime of violence definition that, when applied to what remains of § 924(c)’s definition, causes a breakdown of the statute and doctrine. See infra section I.C.2 and Part II.

Notwithstanding imprecision across the whole of § 924(c)’s violence definition—“the use, attempted use, or threatened use of physical force against the person or property of another” 8 18 U.S.C. § 924(c)(3)(A). —the reference to property is notably anomalous. 9 See Alice Ristroph, Criminal Law in the Shadow of Violence, 62 Ala. L. Rev. 571, 604 (2011) (“In contrast to the traditional understanding of violent crime, this definition expands the concept of violence . . . [because] it counts force against property as violence . . . .”). What is the use of force against property, and what relation does it have to violence? How does force against property compare to force against persons? Does the provision demand violence classification in the name of broken windows and graffitied walls, or does it leave such minor contact with property outside the scope of violence? Federal courts grapple with these questions and arrive at different answers.

The courts’ answers matter. In FY2020, federal courts handed down 2,525 convictions under 18 U.S.C. § 924(c), with the resultant prison terms averaging over eleven years. 10 U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 924(c) Firearms Offenses 1 (2021), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Section_924c_FY20.pdf [https://perma.cc/KQB2-F2PD] (last visited Oct. 4, 2021). Countless other § 924(c) charges were bargained away or voluntarily forgone by prosecutors. 11 See infra section II.A. Prosecutors’ discretion to bring § 924(c) charges against a wide range of varyingly harmful conduct raises concerns of unfair application of the laws. In the summer of 2020, for example, prosecutors in the Eastern District of New York brought § 924(c) charges against two protestors who lobbed Molotov cocktails into a deserted police car. 12 See infra section II.A. If convicted, the protesters would have faced a mandatory minimum sentence of thirty years for the § 924(c) charges alone. 13 See 18 U.S.C. § 924(c)(1)(B)(ii) (“If the firearm possessed by a person convicted of a violation of this subsection . . . is a machinegun or a destructive device, . . . the person shall be sentenced to a term of imprisonment of not less than 30 years.”); see also Indictment at 3, United States v. Mattis, No. CR 20 203 (E.D.N.Y. filed June 11, 2020) (charging the protesters under 18 U.S.C. § 924(c)(1)(B)(ii)).

This Note shows that the property provision muddles the doctrine surrounding the statutory crime of violence definition to the extent that it raises unconstitutional vagueness concerns. Doctrinal constraints force courts to evaluate crimes on a categorical (as opposed to case-by-case) basis that applies the crime of violence label only when all manifestations of a particular crime necessarily involve the use of force against persons or property. 14 See infra section I.C.1. That is, one case of a crime is not violent unless all cases of that crime are. The current approach diverts courts to sideshows, where they must consider idiosyncratic versions of crimes that have little to do with the defendant’s actual conduct. These sideshows can raise crucial questions about whether property crimes are violent. A 2019 Tenth Circuit case involving witness retaliation provides an example. 15 See United States v. Bowen, 936 F.3d 1091, 1095 (10th Cir. 2019). The defendant had physically beaten a witness, but the court could not classify the beating as a crime of violence without first deciding that spray painting a car—conduct that could satisfy the same witness retaliation offense—also constituted violence as defined in § 924(c) (that is, whether spray painting involves the use of force against the property of another). 16 See id. at 1104.

The current crime of violence definition leads justice astray by necessitating a dubious, overly technical inquiry. It bears little connection to any sensible understanding of criminal violence and relies on the false equivalence of force used against persons and force used against property. 17 See infra section II.D.2. The inclusion of property in a force-based definition of violent crime contravenes traditional conceptions of violence, burdens courts with inapt inquiries, leads to incongruous applications of punishment, and violates due process guarantees against vague laws.

Finally, this Note argues that, in the absence of legislative intervention, the federal crime of violence definition can still survive scrutiny if federal courts follow a novel statutory interpretation that imputes a nexus requirement between property and person. The use of physical force against property constitutes violence if it implies, provokes, or impends the use of force against a person. Without a nexus requirement, the federal code’s violence classification scheme is untenable. Interpreted literally, it is unreasonable; interpreted liberally, it is unworkable; interpreted in light of existing doctrine, it is unconstitutional.

Part I summarizes the relevant theoretical, legislative, and doctrinal understandings of violence. Part II explains how the notion of violence against property complicates the already convoluted crime of violence jurisprudence. Part III offers a solution for reconciling crime of violence doctrine with a more reasonable conception of violence.