Abstract
Is murder by omission a crime of violence? In its October 2024 term the Supreme Court of the United States was asked this very question in Delligatti v. United States. This case appeared before the Supreme Court because of its 2019 decision United States v. Davis. In Davis, the Supreme Court narrowly held the residual clause of 18 U.S.C. § 924(c)(3)(B) as unconstitutionally vague as a result of its interpretation that the statute required a categorical approach. As a result, federal courts have been forced to provide pages of painstaking analyses to hold that murder by omission is a crime of violence. In other instances, federal courts are forced to reach the illogical conclusion that second-degree murder is not a crime of violence. This Comment suggests a way out of the absurd results created by the categorical approach by demonstrating that the addition of Justice Amy Coney Barrett to the Supreme Court will provide the swing vote to overrule Davis. Barrett, like the Davis dissenters, would read 18 U.S.C. § 924(c)(3)(B) to allow a conduct-specific approach causing the clause to no longer be unconstitutionally vague.
This Comment demonstrates why a call to revisit Davis is likely due to the frustration and confusion of federal courts in applying categorical approach. In the event this happens, this comment first explains how Barrett’s approach to textualism will likely cause her to interpret the clause similarly to the Davis dissenters. Second, it demonstrates that she shares the Davis dissents approach to applying of the avoidance canon and rule of lenity. Finally, as Barrett has a flexible approach to stare decisis, this comment provides an evaluation of stare decisis factors. In so doing, this Comment demonstrates that the Davis majority’s reasoning is egregiously wrong, the precedent is unworkable, and overruling will not upset reliance interests. By overruling Davis, the Supreme Court can begin to find its way out of the madness of the categorical approach.
Recommended Citation
Sarah Webster,
An End to the Madness: How Justice Barrett Provides a Way Out of the Categorical Approach,
75
Cath. U. L. Rev.
841
(2025).
Available at:
https://scholarship.law.edu/lawreview/vol75/iss4/8
