Thanks to Dan et al. for the opportunity to guest-blog this month. For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999). Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:
“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
Defendant Jones had participated in a carjacking with two other men. While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head. The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death). The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119. If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.
In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).” While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors. This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.
More recently, in Dean v. United States, the Supreme Court majority relied on Congress’ use of the passive voice to bolster its interpretation of a firearms enhancement provision in 18 U.S.C. §924(c)(1)(A). That statute contains a three-part structure similar to the carjacking statute at issue in Jones:
“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”
This time, there was no dispute over whether clauses (ii) and (iii) were sentencing provisions or separate offense provisions—the parties agreed that they were sentencing provisions. The disagreement instead was over whether clause (iii) contains a requirement that the defendant intend to discharge the firearm. (Defendant Dean had carried a gun while robbing a bank; as he was collecting money from a teller’s drawer, the gun accidentally discharged.) The Court, in a 7-2 opinion, held that clause (iii) did not contain an intent requirement. Justice Roberts’ opinion for the Court began by noting that the text of clause (iii) “does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.” The opinion went on in the next paragraph to note that Congress’ use of the passive voice “further indicates” that the clause does not require proof of intent because the “passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability. It is whether something happened—not how or why it happened—that matters.”
These two Supreme Court references to the passive voice as interpretively significant—employed a decade apart—appear to be isolated. A quick Westlaw search reveals only four other post-1944 Supreme Court statutory opinions that even mention the passive voice, and those do so only to observe that Congress’s use of the passive voice leaves the statute’s meaning indeterminate. See United States v. Wilson, Watson v. United States, Gladstone Realtors v. Village of Bellwood, and E. I. du Pont de Nemours & Co. v. Train.
So, what to make of the Court’s “passive voice” references in Jones and Dean? It is hard to tell. If we can generalize from two cases, the Supreme Court seems most likely to give interpretive weight to a statute’s use of the passive voice when that use is repeated throughout a statutory provision (e.g., in multiple clauses), perhaps suggesting a deliberate structural choice. Moreover, as with most grammar canons, the Court seems likely to employ passive-voice-based inferences only to bolster or corroborate a statutory interpretation reached through other interpretive canons and tools. Upshot: For counsel seeking to convince the Court to interpret a criminal statute in a particular direction, it is worth making passive-voice based arguments favoring a particular construction—but briefs are best off leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.
