Attorney General Jeff Sessions drew attention to a series of federal court decisions holding laws using the blanket federal definition of “violent crime” to be “unconstitutionally vague” in a pair of talks about violent crime this past week.
The issue came to a head this week when it became clear an Iraqi refugee accused of trying to kill a Colorado Springs policeman had been slated to be deported in 2016 for his previous convictions, only to be saved by the courts.
In Sessions’ address Thursday at the United States Attorney’s Office for the Middle District of Georgia in Macon, Georgia, he slammed the first case in this line, 2015’s Johnson v. United States, which struck down the “catch all” violent crime provision in the “Armed Career Criminal Act (ACCA),” a law which imposes strict sentences on “violent felons” caught with firearms who have broken the law three times or more.
“Right now we are missing one of the most important law enforcement tools we had because of a 2015 Supreme Court decision holding that the legal definition of ‘violent felony’ was too vague,” Sessions said in his prepared remarks. “The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times. … The Court ruled that the definition of ‘violent felony’ was too vague.”
In Johnson, one of the defendant’s three felony convictions was for possession of a sawed-off shotgun, which prosecutors included in the ACCA’s catch all as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court, instead, overturned this part of the law for being “unconstitutionally vague” — not putting people sufficiently on notice as to what conduct is actually included under it.
“The next thing you know, the Court applied the same reasoning to an immigration law,” Sessions said, referring to this year’s Sessions v. Dimaya, which built on Johnson to strike down the law under which accused cop-shooting refugee Al Khammasi would have been deported. “They said that the term ‘crime of violence’ is too vague.”
Karrar Noaman Al Khammasi, 31, is charged with putting Colorado Springs Police Department officer Cem Duzel in the hospital in critical condition when he allegedly shot it out with law enforcement who responded to calls of shots fired last month. A Monday report in the Washington Times quoted a Department of Homeland Security (DHS) official confirming that Al Khammasi was allowed to stay in the country despite his criminal record because of one of these rulings.
Since arriving in 2012, Khammasi has, according to the Washington Times, been in trouble with the law no fewer than nine times, including “drunken driving, trespassing, assault, extortion and illegally possessing a firearm.”
Lutheran Family Services Rocky Mountains is, according to the Colorado Springs Gazette, the organization responsible for bringing Khammasi and his fellow Middle Eastern refugees to Colorado’s El Paso County. They refused to comment on the case, telling the Gazette that “it does not comment on involvement with clients.”
According to DHS, Al Khammasi was slated to be removed from the United States in June 2016, but a pending case in the U.S. Court of Appeals for the Tenth Circuit, Golicov v. Lynch, gave the department pause. In September of that year, the Tenth Circuit ruled the law under which violent criminal aliens may be quickly deported is unconstitutionally vague after examining a Utah green card holder’s removal order based on a conviction for “failing to stop at a police officer’s command.” It would be a very similar analysis that the Supreme Court would apply in Dimaya to invalidate the law nationwide.
Reactions to Dimaya as it was handed down in April were mixed, even on the right. Some saw major problems for effective immigration enforcement against violent criminal aliens. Others saw a strict, originalist interpretation of the Constitution enlisted to strike down a badly written law. All were in agreement that a legislative fix was needed to close the loophole through which criminals like Al Khammasi have slipped.
The White House emphasized this in its statement:
Yesterday’s Supreme Court ruling preventing the removal of certain aliens convicted of aggravated felonies that constitute “crimes of violence” highlights the danger posed by congressional inaction. This case, first argued and briefed under the Obama Administration, gives Congress a clear opportunity to finally close dangerous loopholes: Congress should immediately pass a fix to close these loopholes so that the United States can promptly remove violent criminal aliens from our country. Unless Congress acts, the United States Government will be unable to remove from our communities many non-citizens convicted of violent felonies, including in some cases domestic assault and battery, burglary, and child abuse. It is a matter of vital public safety for Congress to act now.
On Thursday, Sessions reiterated the administration’s insistence that Congress replace the laws the Supreme Court has struck down for vagueness. “Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country. We need a fix,” Sessions said, adding later, “We’ve got a real problem here—and it could get a whole lot worse. Congress has a duty to clarify the law.”