Did you know that driving away from the police can now be considered a violent crime? No you don’t have to hit anyone or anything for fleeing and eluding the police, in a car, to be deemed a violent crime?
On Thursday, a divided Court, ruled in a 6-3 decision that an Indiana man could be sentenced, federally under an enhancement based on having a background of three violent crimes. Yes. One of those “violent crimes” was fleeing the police in a vehicle.
Fleeing from the police in a car is a violent felony that can subject criminals to mandatory 15-year prison terms, the Supreme ruled on Thursday in a 6-to-3 decision.
The decision was the court’s fourth encounter since 2007 with a phrase in a federal law, the Armed Career Criminal Act. Under the law, convicted felons found with guns face a maximum sentence of 10 years. But those with three convictions for violent felonies are subject to a 15-year mandatory minimum sentence.
The law defines violent felonies as including burglary, arson and other “conduct that presents a serious potential risk of physical injury to another.” The defendant in the case Thursday, Marcus Sykes, pleaded guilty to having a gun in violation of the federal law, and it was undisputed that he had twice committed violent felonies, by robbing a man of his wristwatch and a woman of her purse.
The question in the case was whether a third conviction under Indiana law for fleeing from the police in a car was also a violent felony. Mr. Sykes’s flight was dangerous, Justice Anthony M. Kennedy wrote for the majority. “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,” Justice Kennedy wrote.
But, Justice Kennedy went on, the issue was not whether Mr. Sykes’s actual conduct had been violent. Rather, it was whether the crime he had been convicted of was as a general matter a crime of violence.
As a matter of both common experience and statistics, Justice Kennedy wrote, the answer was yes. Fleeing from the police in a car, he wrote, “is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase.”
Did you notice this was not a unanimous decision? What I find interesting is that Justice Scalia wrote a separate dissent.
As the Court's opinion acknowledges, this case is “another in a series,” ante, at 1. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553
U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
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. 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. See Kolender v. Lawson, 461 U. S. 352, 357 (1983).
What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach, United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted), and that permits, indeed invites, arbitrary enforcement, see Kolender, 461 U. S., at 357. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA
penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases,so do the number of imprecise laws. 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 nittygritty. 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.
A decision like this requires citizens to correct the decisions of the court.