Supreme Court grants cert on yet another “crime of violence” case

Over at SCOTUSblog here, John Elwood in one of his indispensble “Relist Watch” posts jokingly described the Supreme Court’s jurisprudence around violent predict offenses under federal law as an “apparent effort to create perpetual full employment for federal sentencing lawyers.”  That effort got yet another boost this morning from this new SCOTUS order list granting cert in Delligatti v. United States, No. 23-825, which presents this question (drawn from this cert petition):

Under 18 U.S.C. §  924(c)(3)(A), a felony 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.” Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action.

In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction—such as by failing to provide medicine to someone who is sick or by failing to feed a child….

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Though I would actually prefer SCOTUS to be talking up a lot more non-“crime of violence” sentencing cases, I get a strange kick out of the fact that the predicate crime definition issue here could engage generations of philosophers who have debated the moral distinctions between consequences resulting from action and inaction.  Though I doubt the famous trolley problem developed by Philippa Foot and Judith Jarvis Thomson will be central to any amicus briefs in Delligatti, the issue in this case is a reminder that even mind-numbing technicalities in criminal statutes necessarily raises an array of deep philosophical questions about law and life.

Editor’s note: upon first blogging, I wrongly assumed Delligatti was an ACCA case, but it is not.  I think I have now properly corrected this post and I thank the commentor for kindly bringing my mistake to may attention.  (And, importantly, ACCA jurisprudence will alos be impacted by the eventual ruling in Delligatti.)