Crimes of Violence and Violent Crime

Why can’t federal law define “violence”? Major federal statutes turn on whether someone was convicted of a violent crime. But judges and scholars widely agree that the law defining violence is “chaos.” This Article treats the problem as one of statutory design and construction. What’s violent is a fact-based judgment call—it’s a standard meant to be interpreted case by case through factfinding and adjudication.

But Supreme Court jurisprudence increasingly treats it like a rule, insisting that courts must define violence without the facts and discretion that would give that interpretation coherence across countless unique cases. Chaos is not inevitable. Predicate statutes like the federal violence definitions have been ubiquitous in American law for centuries without doctrinal disaster. This Article learns from their example.

They mostly do not, as some scholars and Justices have proposed, ask juries to judge predicates. Instead, most predicate laws list which crimes qualify, an approach federal violence law followed for thirty years before Congress quietly changed to defining violence abstractly in the 1980s. Congress should return to listing violent crimes and could further reduce confusion by adopting existing state laws that list which crimes in their jurisdiction are violent. In the meantime, the Supreme Court should loosen its rigid interpretive rules and give federal judges more flexibility to judge violence sensibly.

Leading scholars and Supreme Court textualists have assumed that criminal law’s greatest problem is discretion—especially prosecutorial discretion—and have urged making crime definitions more rule-like, focused on the “real” conduct legislatures mean to prohibit. Federal violence doctrine offers an object lesson in why that approach fails. Crimes are standards, and discretion is necessary to interpret them across thousands of unpredictable fact patterns. Criminal procedure constrains that discretion by distributing it across many interpreters—law enforcement, prosecutors, defense attorneys, defendants, judges, and juries—within a broader network of laws, procedures, policies, and norms.

Longstanding debates about rules versus standards have missed this sort of “distributed discretion,” but it makes discretionary judgments like violence—and crimes—make sense.