The Passive Voice in Statutory Interpretation
posted by Anita Krishnakumar
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.
November 2, 2009 at 1:38 pm
Posted in: Criminal Law, Supreme Court
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Responses (7)
A.J. Sutter - November 2, 2009 at 8:31 pm
The grammar is in the Jones case’s statute is different from that in the Dean case. The highlighted language in clauses (ii) and (iii) of 18 U.S.C. §924(c)(1)(A) (in Dean) really does involve uses of the passive voice (“is brandished”, “is discharged”). But the bolded language in clauses (2) and (3) of 18 U.S.C. §2119 (Jones) is in the active voice: “results”. The only passive in each of those clauses is “be sentenced” in the apodosis of the condition.
Justice Kennedy seems to have confused the use of an active, intransitive verb with a passive, transitive one. What may have caused his confusion is something specific about “to result”: its subject is often what we think of as the object of an some transitive verb. (Try substituting another intransitive verb like “shouts,” “glows” or even “hurts” for “results”: the new sentence may be a bit surreal, but there’s little chance you’ll regard it as in the passive.) So actually his Jones dissent seems to rely on semantic features of “results” rather than on grammatical ones. Nonetheless, the majority decisions in the two cases are consistent with Justice Kennedy’s notion that active => separate offense, and passive => sentencing guideline.
Anon321 - November 3, 2009 at 8:09 am
A.J. Sutter is right about Jones: “if serious bodily injury results” is not an example of the passive voice. Language Log has done done a series of posts on the public’s misunderstanding of what “the passive voice” means (see http://languagelog.ldc.upenn.edu/nll/?p=1530 for example). But I’m somewhat surprised to see the same mistake being made in a Supreme Court opinion. At least Justice Kennedy appears to have been using the term to mean “vague about who’s at fault,” which Mark Liberman at Language Log refers to as “the grammatical sense gone adrift” — which is probably less bad than some other uses of the term that are wholly untethered to the grammatical meaning.
Anon321 - November 3, 2009 at 8:21 am
One other thought on Dean: much of the briefing (as I recall) focused on the applicability of the Morissette line of cases, which hold, in essence, that courts should not infer the absence of a mens rea requirement from Congress’s failure to explicitly include one, and, relatedly, that Congress must speak clearly if it intends to do away with a mens rea requirement in a criminal statute.
The majority opinion in Dean glosses over this issue. Is it that Morrissette is completely inapplicable to sentencing provisions — or perhaps even to criminal provisions that presuppose the existence of a predicate crime? (“It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts.”) Or is it that the use of the passive voice constitutes a sufficiently clear statement to satisfy the requirements of Morrissette? Or something else?
Tuesday Round-up | SCOTUSblog - November 3, 2009 at 8:22 am
[...] Concurring Opinions has a piece today on the implications of the passive voice in the Supreme Court’s statutory interpretation, highlighting two cases – Jones v. United States and Dean v. United States – in which justices relied on the use of passive voice to make conclusions about the intent of statutory provisions. The author concludes that although the Court’s previous usage of passive voice arguments makes them at least relevant for argument, it is rare enough that counsel is probably best served “leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.” [...]
Anita S. Krishnakumar - November 4, 2009 at 9:12 am
There are a number of interpretive tools at work in Dean, and I think the passive voice is doing only a fraction of the work in the opinion. For example, the Court makes a complicated whole act meaningful variation argument based on the definition of “brandish” elsewhere in the statute (the term is defined to require display of a firearm “in order to intimidate” — demonstrating, in the Court’s view, Congress’s ability clearly to include an intent requirement when it wants to). I do also think, as you note, that the majority opinion places a lot of weight on what it presents as a background criminal law norm that a person who commits an unlawful act is liable/guilty for the full consequences of that unlawful act, whether or not he intended those consequences. This latter argument likely was included in response to the mens rea discussion you mention from the briefs.
Justice Stevens’ dissent does embrace and rely on the Morissette presumption of a mens rea argument, but I think you’re right that the majority (implicitly) is saying that the Morissette presumption does not apply when intent is present with respect to the underlying unlawful act, though not necessarily its consequences.
Neal Goldfarb - November 4, 2009 at 5:24 pm
Roberts overstates the significance of the statute’s use of passive voice in Dean. While using the passive makes it possible not to refer to the actor explicitly, it is not correct to say that it “focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability.”
If you say “The gun was discharged” (as opposed to the intransitive “The gun dishcarged”) you are necessarily saying that it was discharged by someone. That person may not be identified or even identifiable, but that doesn’t mean that he is any less a “specific actor” than if he was picked out by name.
The idea that using passive voice eliminates any element of intentionality is also wrong. Would anyone seriously contend that the following sentences don’t impute intentionality to the (unnamed) actors?
Anon321 - November 5, 2009 at 12:44 pm
Good points. I’d also add that the statement “if the firearm is intentionally discharged by the defendant” is in the passive voice, yet still specifies who must do the discharging and what mens rea is required for that discharge to violate the statute. There’s no inherent link between the use of the passive voice and silence about agency or intentionality.
Similarly, “if the firearm discharges” and “if anyone discharges the firearm” both use the active voice, but (at a minimum) suggest that it doesn’t matter who (if anyone) fires the gun.
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