Is attempted murder under New York law a “crime of violence” under federal law?

The question in the title of this post likely seems a bit ridiculous.  And yet this question is the issue being considered by the Supreme Court at oral argument this morning in Delligatti v. US.  To be precise, here is the (lengthy) question presented in the petitioner’s brief: 

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.

The government’s brief is more economical in its statement of the issue in Delligatti: “Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), is a crime of violence under 18 U.S.C. 924(c)(3).”  (The charge of attempted murder underlying petitioner’s Section 924(c) count was premised on petitioner’s commission of New York attempted second-degree murder.)

Though I expect “normies” could answer the question in the title of this post without difficulty, astute federal criminal lawyers likely know why this question is not so simple.  The so-called “categorical approach” to sorting out what are “crimes of violence” under federal law has been bedeviling lawyers and judges for decades now, and Delligatti is just the latest variation on the theme.  Helpfully, this recent Law360 analysis of the case, headlined “High Court ‘Violent Crimes’ Case Tangled Up In Hypotheticals,” provides a detailed account of this tale as old as ugly jurisprudential time as well as the parties’ arguments in Delligatti.  I recommend that piece in full, and it concludes with a call to Congress to jettison the mandatory minimum at issue here altogether:

Delligatti shows how the categorical approach relies on hairsplitting legal hypotheticals and reaches absurd results…. So long as the Supreme Court remains supportive of the categorical approach and requires its implementation when analyzing elements clauses, lower courts cannot simply get rid of the categorical approach.  However, Congress can get rid of Section 924(c), with minimal consequences.

As the federal defenders explained in their amicus brief, even without Section 924(c), those convicted of violent crimes will still face long sentences, “even if their crimes are not technically ones of ‘violence.'”…  Even without mandatory sentences, judges can impose sentences that fit the specific circumstances of individual defendants. In some cases, this might reduce the costs of our overgrown carceral system.  And where it is warranted, decades-long incarcerations can still be imposed without Section 924(c), and without the time-wasting uncertainty caused by the categorical approach. 

After Delligatti, Congress should recognize that requiring hypertechnical arguments regarding enhancements leads to counterintuitive outcomes and unnecessarily long prison sentences, and repeal Section 924(c). 

I am not expecting Congress to get rid of 924(c) mandatory minimums anytime soon, but it will be interesting to see if SCOTUS is willing to keep advancing limiting constructions of this statute.