I’ve posted recently on some of the fallout from the Supreme Court’s April decision in Begay v.United States, but not yet commented on Begay itself.  It is a remarkable case.  After twelve convictions in state court for DUI, Begay was convicted in federal court for being a felon in possession of a firearm.  The sentencing judge found that his prior DUI felony convictions qualified Begay for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act, which applies to felon-in-possession defendants who have at least three prior convictions for a “violent felony.”  The Supreme Court reversed, determining that DUI is a not a “violent felony.”  I think this was the right result, but it was reached by the wrong means.

The majority relied on the statutory definition of “violent felony,” which covers (in pertinent part) any felony that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Since DUI is not one of the specifically listed offenses in this definition, the question was whether it fell within the scope of the “residual clause” (that is, the “or otherwise” language).  The majority determined that the residual clause covers only offenses that are similar to the listed offenses.  In particular, the majority observed that all of the listed offenses involve “purposeful, violent, and aggressive conduct.”  And because DUI does not involve such conduct-indeed, the majority characterized it as a strict liability offense-it could not be treated as the basis for an ACCA sentence enhancement.

Justice Scalia concurred, in an opinion that I find more analytically satisfactory.  As Scalia observed, the majority added a requirement (purposeful, violent, and aggressive conduct) that is not contained within the statutory language.  Rather, the more natural reading of the residual clause focuses on the one specifically identified shared trait of the listed crimes: “a serious potential risk of physical injury to another.”  Thus, the scope of the residual clause is properly limited to crimes whose risk is at least as great as that of the least dangerous of the listed crimes.  DUI is a dangerous offense, to be sure, but the government did not supply statistics indicating how dangerous individual instances of drunk driving are.  “Where the issue is ‘risk,’ the annual number of injuries from an activity must be compared with the annual incidents of the activity.”  Given the uncertainty of the risk profile of DUI, as compared to burglary (the least dangerous of the listed crimes), Justice Scalia invoked the rule of lenity, which indicates that a tie in criminal cases goes to the defendant. 

Since Scalia would put the burden on the government to produce evidence of comparative risk, it might be argued (given large gaps in the available data) that his approach would seriously constrict the scope of the residual clause, placing many repeat felons beyond the reach of the ACCA.  So be it.  The ACCA was an ill-conceived statute that undermines the more nuanced and scientifically sound (but still plenty tough) treatment of prior convictions in the federal sentencing guidelines.  The ACCA was not an exercise in informed policymaking, but an act of political grandstanding by members of Congress.  Of course, in our political system, it is the legislature’s prerogative to pander.  But it is the courts’ prerogative-consistent with their two centuries of recognizing the rule of lenity-to insist that the legislature clearly define the targets of its grandstanding before criminal punishment is handed out.  If Congress really wants to treat drunk drivers (or any other group) as violent career criminals, it can and should amend the statute to say as much.