Andrew McBride Analyzes Supreme Court’s Violent Crime Debate in Law360

July 2, 2019

Washington, D.C., partner Andrew McBride wrote a June 27 column for Law360 analyzing the U.S. Supreme Court’s decision striking down a section of federal law that allows prosecutors to seek tougher penalties for certain violent crimes involving firearms. In a 5-4 decision, the court ruled that the definition of “crimes of violence” in the federal criminal code is unconstitutionally vague.

McBride, a former federal prosecutor, wrote that the debate was about whether the “substantial risk” prong of the definition requires judges to assess “ordinary conduct” associated with the offense or a criminal defendant’s case-specific conduct. Justice Neil Gorsuch wrote the June 24 majority opinion in United States v. Davis, striking down the statute. Justice Brett Kavanaugh issued a sharply worded dissent.

“The case contains a fascinating constitutional debate between Justice Gorsuch and Justice Kavanaugh as to what constitutes the right result under principles of judicial restraint,” wrote McBride, a member of the firm’s Government Investigations & White Collar Litigation Department.

For Gorsuch, “expanding criminal statutes beyond their clear statutory reach presents both fair notice and separation-of-powers problems,” McBride wrote. On the other hand, “Kavanaugh leaves no doubt that he views the majority’s result as outside the norm.”

McBride concluded that Davis “provides us with one of the best debates on statutory construction and judicial restraint this term.”                                       

“In addition, the impact of Davis could be far and wide,” McBride said. “Many federal and state criminal statutes have residual clauses in a wide variety of settings, including nonviolent crimes. Practitioners should be on the lookout for these ‘catch-all’ clauses in their own cases.”