Sentencing Subject of Supreme Court Scrutiny

     WASHINGTON (CN) – The Supreme Court heard arguments Tuesday over what defines a violent felony under federal law. Justices proposed exaggerated definitions, as is often their practice, but appeared startled when the government lawyer agreed to a scenario where a felon would be given an additional 12 year sentence merely for threatening to touch another person.

     Using his fingers to show a flicking motion, Justice Antonin Scalia described a scenario where someone said he would “thwack” another fellow on the shoulder if he didn’t “shut up.” “This is a violent felony under this statute which gets him how many more years?” asked Scalia.
Assistant Solicitor General Leondra Kruger replied that the sentence would be increased by at least 15 years.
The events underlying the discussion start when, after being convicted of a felony, Curtis Johnson was then convicted of a misdemeanor. But instead of being charged with a misdemeanor, he was charged instead with a felony because of his history.
     Instead of facing a sentence of just under three years, Johnson now faces a 15-year minimum sentence.
     “This isn’t a felony battery statute,” Scalia said, clarifying. “This is a misdemeanor battery statute which has been elevated to a felony in this case only because the fellow had a prior.”
     Under the Armed Career Criminal Act, felons who commit crimes with firearms get harsher sentences if they’ve committed violent felonies three or more times.
     In Florida, where the earlier felony was committed, simply touching somebody can equate to battery. And the government has said a batter charge equates to a violent crime.
     The details of Johnson’s prior felony were not revealed during the arguments.
     Johnson has contested that his prior felony was violent.
     Naturally, the debate roared over how to define violence.
     Lisa Call, the public defender representing Johnson, argued that Johnson’s prior crime did not threaten or use force, which is required under federal law to label it a violent felony. “Physical contact is not the same as physical force,” she said.
     She defined violence as “a rough use of force that could lead to injury.”
     Kruger, who argued for the government, maintained that any form of touching could be violent under the law.
     “Well, Armed Career Criminal Act uses the words ‘physical force,’ and any touching involves some physical force,” Justice Samuel Alito said.
     The act defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year that has as an element the use, attempted use, or threatened use of physical force.”
     “The use of physical force means just the use of force, but it doesn’t mean that it necessarily has to cause injury,” Justice Sonia Sotomayor said, citing a slap as an example. “Why should we read something more into it, like physical injury?”
     Call replied that injury doesn’t have to result, but that the line has to “fall somewhere higher than mere contact.”
     When Kruger stood up to present her defense of the United States, Chief Justice John Roberts was quick to ask about her assumption that battery is interpreted under the criminal act as a violent felony.
     “Well, then why didn’t they just say battery?” he asked.
     Kruger replied that Congress didn’t want to simply list offenses, but clarify the common element among them, which is physical force.
     Scalia followed up. “You would have us believe that by violent felony in this statute, Congress meant the threat? It doesn’t even have to be the act?”
     Scalia looked down on Kruger with a look of disbelief. “When a verdict is brought in in Florida under this misdemeanor statute, all you know for sure is that he threatened to go (flick),” he motioned. “That’s all you know for sure that he has been convicted of, and you are going to give him 15 years.”
     Kruger replied that threatened use of force is typically punished as assault.
     The justices were, on the whole, highly skeptical of Florida’s interpretation of battery, and the government’s maintenance that such battery constituted violence.
     “How about pick pocketing, would pick pocketing be a violent crime if it involves a touching necessarily?” Justice Anthony Kennedy asked, appearing equally struck.
     “No, but you don’t prosecute them for pick pocketing. You have a clumsy pick pocket and you prosecute him for battery, right? And he gets 15 years.” Scalia said to laughter.
     Kruger explained that robbery falls under the act just like violence.
     Justice Ruth Bader Ginsburg asked if Congress had, in trying to extend the sentences of the worst of the worst “meant to get after people who go around poking other people in a rude manner” when it passed the act.
     “Congress probably wasn’t focused on the least amount of force that it takes to commit the crime of battery,” Kruger replied.
     The skepticism of the justices balances to some degree the fact that the Eleventh Circuit has rejected Johnson’s claim. The Supreme Court tends to favor appellate court rulings.
     During the arguments, Justice Stephen Breyer seemed confused by the public defender’s definition of assault. He said that under Call’s definition of assault, given earlier in her arguments, “it is conceivable that you could assault somebody by threatening to throw a marshmallow at them.” he said. “That means assault is no longer a crime of violence, and that can’t be right.”
     But Scalia was quick to correct Breyer. “Well, of course it’s right. You don’t have to touch somebody for an assault,” he retorted.

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