The Passive Voice in Statutory Interpretation

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7 Responses

  1. A.J. Sutter says:

    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.

  2. Anon321 says:

    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 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.

  3. Anon321 says:

    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?

  4. Anita S. Krishnakumar says:

    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.

  5. Neal Goldfarb says:

    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?

    “The cert. petition was denied.”
    “The prisoner was tortured.”
    “The money was stolen.”

  6. Anon321 says:

    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.