Recently, the Supreme Court has been taking a lot of interest in the Armed Career Criminal Act, which requires that a minimum fifteen-year prison term be imposed on certain defendants with three or more prior convictions for serious drug offenses or crimes of violence.  As I discussed here, the ACCA has proven to be an interpretive nightmare, with courts struggling for more than two decades now to decide exactly which prior convictions count as triggers for the mandatory minimum.  With several recent opinions and cert grants, the Supreme Court now seems intent on addressing some of the many circuit splits in the ACCA case law.

Of particular note last year was the Court’s decision in Begay v. United States, in which the Court held that DUI is not a “crime of violence.”  Now, following in Begay’s footsteps, the Court held today in Chambers v. United States (No. 06-11206) that failure to report to prison is not a crime of violence. 

Chambers does not purport to revise the analytical framework used in Begay, but I am struck by how much closer the Chambers opinion seems to be to Justice Scalia’s concurrence in Begay than to the majority opinion in the earlier case.  Has Scalia convinced a few of his colleagues to switch sides?

As I posted here a few months ago, the Begay majority held that DUI is not a crime of violence because DUI is a strict liability offense.  The Court thereby effectively inserted a mens rea requirement into the ACCA that is nowhere apparent in the statute’s text.  Scalia’s concurring opinion, which I found to be more analytically satisfying, would focus attention on the dangerousness of the defendant’s conduct; in his view, what distinguishes a “crime of violence” is the risk of harm, not the defendant’s state of mind.  The majority rejected this approach because reliable data is not available regarding the dangerousness of many types of criminal conduct (including DUI).  Scalia, textualist that he is, saw no good reason to rescue the government from the burdens created by poor legislative drafting: if the statute demands dangerousness, then the government must either prove dangerousness or have the statute rewritten.

In Chambers, the Court actually did have data available: the United States Sentencing Commission recently studied a couple hundred failure-to-report case and found little violence associated with them.  And the Court — consistent with Scalia’s approach in Begay — made this statistical analysis central to its analysis.  Indeed, the Court went so far as to cite Scalia’s Begay concurrence for the proposition that degree of risk is a “critical definitional factor” in determining what is a crime of violence — without even noting that disagreement over this proposition is precisely what divided the majority and Justice Scalia in the earlier case.  Underscoring the extent to which Chambers seems to adopt his approach, Justice Scalia joined the Chambers majority opinion without comment or reservation.

Since the Court did not address the apparent inconsistency between Chambers and Begay, it is hard to know what to make of it.  Is the Court edging away from the subjective approach employed in Begay in favor of Scalia’s preferred objective approach?  Or will the analysis in future cases vary depending on the availability of risk data?  Or is the Court contemplating some other way of reconciling or combining the subjective and objective approaches?  Time will tell.