(CN) – In a scorching dissent from the Supreme Court on Thursday, Justice Antonin Scalia scolded his colleagues for wasting the court’s time in refining the the so-called residual clause of the Armed Career Criminal Act.
The underlying case involves the unsuccessful attempt by Marcus Sykes to avoid a five-year sentence enhancement for attempted robbery at gunpoint. Although being a felon in possession of a firearm typically carries a 10-year maximum sentence, the District Court sentenced Sykes to just over 15 1/2 years because he had three prior violent felony convictions.
Sykes disputed whether one of the prior felonies – fleeing from the police – was actually violent, but the 7th Circuit agreed with the trial court that it was.
In that prior crime, Indiana police tried to pull Sykes over after they saw him driving with his headlights off. Instead of stopping, “Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence, and struck the rear of a house,” according to the majority opinion. “Then he fled on foot. He was found only with the aid of a police dog.”
A five-justice majority concluded that such behavior is in fact violent under Indiana law.
“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,” Justice Anthony Kennedy wrote for the court. “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 potential for violence increases even after the chase has ended, since police will likely approach the suspect with guns drawn, according to the 14-page opinion.
Flight from law enforcement is not specifically categorized as a violent felony, but the justices pointed out that statistically it can be equally dangerous to arson and burglary.
“Chase-related crashes kill more than 100 nonsuspects every year,” according to the majority opinion and a concurring opinion from Justice Clarence Thomas. “Injury rates are much higher. Studies show that between 18% and 41% of chases involve crashes, which always carry a risk of injury, and that between 4% and 17% of all chases end in injury.”
Vehicle flight carries a risk level roughly 20 percent higher than that of arson, the ruling continues.
Thomas did not join in the majority opinion but concurred in the judgment, pointing out that the “purposeful, violent, and aggressive” test may no longer apply to offenses “akin to strict liability, negligence, and recklessness crimes.”
“The only question here is whether, in the ordinary case, using a vehicle to knowingly flee from the police after being ordered to stop ‘involves conduct that presents a serious potential risk of physical injury to another,'” Thomas wrote “I believe that it does. Therefore I concur in the judgment.”
Justice Elena Kagan authored a 14-page dissenting opinion, joined by Justice Ruth Bader Ginsburg, saying that the majority erred in not looking to how the state defines criminality in various types of vehicle flight.
“Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a ‘violent felony’ under ACCA,” Kagan wrote, using the abbreviation for the Armed Career Criminal Act.
Scalia, however, tore into his colleagues for clarifying the hopelessly vague definition of “violent felonies” under ACCA’s residual clause for the fourth time since 2007.
“As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion,” Scalia wrote. “Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.”
Scalia also criticized the statistics cited by the majority and Thomas, noting that they come from government-funded studies and were not part of the record until the government submitted them in its merits brief to the Supreme Court.
“But the more fundamental problem with the Court’s use of statistics is that, far from eliminating the vagueness of the residual clause, it increases the vagueness,” Scalia wrote. “Vagueness, of course, must be measured ex ante – before the Court gives definitive meaning to a statutory provision, not after. Nothing is vague once the Court decrees precisely what it means. And is it seriously to be expected that the average citizen would be familiar with the sundry statistical studies showing (if they are to be believed) that this-or-that crime is more likely to lead to physical injury than what sundry statistical studies (if they are to be believed) show to be the case for burglary, arson, extortion, or use of explosives?” (Parentheses and emphasis in original.)
Ultimately the application is unconstitutional, according to the nine-page dissent, since the court cannot approve the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach.
“The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home,” Sclaia wrote, adding that he court’s “ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come.”
Congress’ adoption of laws in general, and especially criminal laws, is only increasing, Scalia said.
“It should be no surprise that as the volume increases, so do the number of imprecise laws,” he wrote. “And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step – indeed, I think it would be highly responsible – to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.”