Today’s case was decided on June 9, 2011 by the U.S. Supreme Court, and the issue was whether a criminal fleeing the police in a vehicle constitutes a “violent felony” as defined by the applicable federal statute, the Armed Career Criminal Act (“ACCA” for brevity’s sake). If the answer was “yes” then the flight at issue in this case would result in an enhanced, 15-year sentence rather than the standard 10-year sentence for the convicted felon, Marcus Sykes.
In a 6-3 ruling, the Court ruled that fleeing by car is indeed a violent felony. But there were two interesting dissents, one by Justice Scalia and the other by Justice Sotomayor--who, arguably, represent the two ideological extremes of the Court.
By way of background, Marcus Sykes had pleaded guilty to felony possession of a firearm, a federal offense. He also had three prior felonies on his record. Because he was being sentenced for a federal offense, and had three prior felony convictions, he was subject to an enhanced sentence under the Federal Sentencing Guidelines if all three of those prior felonies were violent felonies as defined by the ACCA.
Sykes did not argue that he didn’t have three prior felony convictions, nor did he argue that two of the convictions weren’t violent felonies. But he did argue that the third felony—the one that pushed him into the realm of receiving an enhanced sentence—was not a violent felony. The third felony was for “resisting law enforcement” by fleeing in his car after being ordered by police to stop.
For the felony to be considered violent under the ACCA, the crime either needed to involve the use, attempted use, or threatened use of physical force against another person (which was not the case here) or had to be a burglary, arson, extortion, or a crime involving the use of explosives (again, not the case here), or had to otherwise involve conduct that presents a serious potential risk of physical injury to another person. The underlined text is referred to as the “residual clause” or “residual provision” by the Court. I like to think of it as a catch-all provision.
The 5 justices that signed on to the majority opinion (Justice Thomas provided the 6th vote, although he wrote a separate opinion because he disagreed with the majority’s reasoning, even though he agreed with the outcome) held that fleeing the police by vehicle was conduct that presented a serious potential risk of physical injury to another person, and was thus a violent felony. The Court found that “When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent—even lethal—potential for others.”
The first dissent was written by conservative justice, Antonin Scalia. He noted that this was the fourth case in as many years where the Court had to decide whether a given crime fit into the ACCA’s residual clause. Justice Scalia called the majority’s opinion “tutti-frutti” (his language, not mine; he’s quite a colorful, no-holds-barred writer when he wants to be) because “it is an attempt to clarify, for the fourth time since 2007, what distinguishes ‘violent felonies’ under the residual clause of the [ACCA] from other crimes…” and, as a result, “produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough.” He went on to conclude that the residual clause of the statute should be voided for vagueness. He criticized Congress for passing too many laws with “fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation,” which is an attractive approach for members of Congress who want credit for addressing a national problem but do not have the time or votes to “grapple with the nitty gritty” (but who will no doubt later clamor about justices legislating from the bench…).
Scalia ended his dissent by declaring that “in the field of criminal law, at least, it is time to call a halt [to fuzzy language in criminal statutes]. I do not think it would be a radical step…to limit [the ACCA] to the named violent crimes. Congress can quickly add what it wishes.”
The second dissent was written by Justice Sotomayor, and joined by Justice Ginsburg. Justice Sotomayor felt that because Marcus Sykes was convicted of simple vehicular flight, as opposed to aggravated vehicular flight, his offense was not violent as defined by the ACCA. Aggravated vehicular flight would have necessarily involved some action involving high speeds, weaving in and out of traffic, or some other aggressive, reckless conduct. But simple vehicular flight could involve a person who does not drive recklessly or at high speed, but nevertheless fails to stop when signaled to do so. In many states it is a felony to choose the location of the stop, such as by driving to your home after being signaled by law enforcement to pull over, even if you drive home obeying all traffic laws and offer no resistance once arriving at your home.
Since Sykes was convicted of simple vehicular flight, Justice Sotomayor argued, Sykes’ conviction could not be considered a violent felony under the ACCA, regardless of whether his actual actions better fit an aggravated vehicular flight charge rather than a simple vehicular flight charge. The majority had ruled that because both simple and aggravated vehicular flight in Indiana (where the crime took place) was the same level of felony, with the same punishment, no distinction should be made. However, Justice Sotomayor pointed out that the Court had previously ruled that "similar punishment does not necessarily imply similar risk" and that almost every other state does have separate punishments depending on the type of vehicular flight involved, and that even Indiana changed its statute in 2006, after Sykes’ offense, to mirror most other states. Therefore, the majority’s opinion really only applies this particular case and only covers one state’s law as it existed from 1998 to 2006. Therefore, Justice Sotomayor agreed with Justice Scalia’s comment in his dissent that the Supreme Court would be “doing ad hoc application of [the ACCA’s residual clause] until the cows come home.”
Thoughts? Questions? I'd love to hear from you.
And, for anyone who’s interested, the Court’s full opinion is available here.