The title of this post is the title of this new paper authored by Erin Blondel available via SSRN. Here is its abstract:
Why can’t federal law define crimes of 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 a violent crime is a context-specific judgment call — the kind the law usually adjudicates factually, through criminal prosecutions. In other words, it’s a standard. But the Supreme Court has increasingly treated violence as a rule, stripping factual information and interpretive flexibility that might help federal judges judge crimes.
Predicate statutes like the violence definitions are hardly unusual, however, and most have operated smoothly, without mass confusion. They differ from federal violence law by using simpler, rule-friendly criteria. They typically list qualifying crimes, and courts interpret criteria more flexibly, leaving some room for facts and interpretation. That experience shows that federal law is fixable. Congress should return to listing violent crimes, as it did before the 1980s. And the Supreme Court should scrap its rigid interpretive rules and give federal judges more flexibility to judge violence sensibly.
The federal experience defining violence offers a case study in the classic rules-versus-standards debate and the problem with treating standards as rules. And it contradicts a favored proposal among leading criminal law scholars and some jurists to make crime definitions more precise — more rule-like — to constrain prosecutorial discretion. Crimes are standards, and discretion is necessary to interpret them across thousands of unpredictable fact patterns. Prosecutorial discretion, in other words, is not just enforcement discretion but interpretive discretion. 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 in rules versus standards largely ignores this sort of “distributed distraction,” but it helps make discretionary judgments like violence — and crime — make sense.