The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act. This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum. (For background on the ACCA, see my posts here, here, and here.)
The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.” This is a rather mysterious phrase. Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context. And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.
Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense. This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.
Then came Chambers v. United States, 129 S. Ct. 687 (2009).
Chambers held that the crime of failing to report to serve a sentence did not count as a violent felony. The Court’s relatively brief analysis paid very little attention to state-of-mind considerations, but focused more on objective dangerousness, including data showing low levels of violence associated with the offense. Indeed, the Court approvingly cited Justice Scalia’s concurring opinion in Begay, which rejected a culpability requirement in favor of a purely objective approach. Remarkably, the Court made no mention of the subjective-objective debate in Begay. Based on the citation to Scalia’s concurrence and the use of an objective approach in Chambers, I’ve wondered whether the Court is quietly moving towards Scalia’s view. Scalia himself did not write in Chambers, suggesting that he is satisfied with the Court’s trajectory from Begay to Chambers.
But there is another possibility. Rather than selecting an objective approach over a subjective approach, Chambers may instead tacitly endorse a two-prong test: to count as an ACCA predicate, an offense must satisfy both a subjective culpability requirement and an objective dangerousness requirement. Because the offense in Chambers failed the objective test, there was no need to get into the subjective test – on this view, the Court’s silence on culpability did not indicate that culpabilty has fallen out of the equation generally, but only on the specific facts of Chambers.
Although I’ve not seen much express consideration of the question, my impression is that the lower federal courts have generally understood Chambers in the latter, both/and sense.
In the immediate aftermath of Begay, I wrote here in favor of Scalia’s purely objective approach. Now I’m not so sure. For one thing, Scalia’s opinion was framed as an either/or choice between the objective and subjective approaches. If the question is presented that way, I suppose I would still favor the objective approach as more consistent with the statutory language. But, as a third option, the two-pronged approach does have some appeal. In the past, I (like Scalia) may have been a little too dismissive of the culpability requirement as lacking a clear textual basis.
Here’s the relevant statutory language:
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . 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 . . . .
The italicized portion constitutes the so-called residual clause, the interpretation of which has been the task of Begay, Chambers, and now Sykes. The way that this clause is paired up with three familiar crimes that do have substantial culpability requirements (burglary, arson, and extortion) provides support for interpreting the residual clause also to have a culpability requirement. Doing so is also consistent with the evident purpose of the ACCA, which is to deliver extended incapacitation to the most dangerous offenders; recidivists whose record indicates a pattern of intentionally dangerous or harmful conduct would seem more suitable for incapacitation than those who have only acted, say, negligently. Yet, a purely objective approach might draw serial carelessness into the ACCA’s incapacitation scheme.
Indeed, if we are to ascribe any significance to the title of the statute, the phrase “career criminal” — consistent with the references to burglary, arson, and extortion — connotes a repeat offender who is committing crime for a living, i.e., is motivated to achieve pecuniary gain by wrongfully depriving others of their property. Again, this points to an interpretation of the residual clause that would require a truly blameworthy state of mind (although, to be fair, I’m not so sure Begay’s “purposeful, violent, and aggressive” standard precisely captures the nature of the culpability suggested by the phrase “career criminal”).
There may also be some appeal to a subjective prong insofar as it permits some priors to be knocked out as ACCA predicates quickly and easily without requiring the extensive litigation that might be required to answer the complex empirical question of how dangerous a given category of crime is. This was the dynamic in Begay itself, in which the Court used the culpability requirement as a way to avoid answering the uncertain question of how dangerous is the typical instance of DUI. Although I’ve not yet noticed any indication of this in the case law, such questions of objective dangerousness seem to invite the use of expert witnesses on statistics and criminology. Again, judges and lawyers alike might appreciate the ability to resolve the status of some priors without going down the path of such complex litigation.
Whatever the merits of a subjective prong, Sykes may provide a good opportunity for the Court to clarify whether such a prong exists and, if so, what exactly the PVA standard means.
Sykes was convicted of the Indiana crime of using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop. Was this a “violent felony”? The Seventh Circuit held yes, although at least one other circuit has concluded that a similar crime was not.
In Chambers, the Court was able to avoid answering any hard questions about the culpability required for an offense to count as a “violent felony” because the offense at issue in that case did not satisfy the requirement of objective dangerousness. The Court is less likely to reach a similar conclusion in Sykes.
Having read the government’s brief, I’m impressed that there is a much more solid case for objective dangerousness in Sykes than inChambers. Not airtight, mind you, but still pretty strong.
The key to the government’s argument is the assumption that police typically give chase when a motorist refuses an order to pull over, because there is a fair bit of data showing that police pursuit is a rather dangerous proposition. And it does seem at least plausible that pursuit typically ensues, although I suppose it is also possible that (a) many motorists who initially refuse to pull over think better of it pretty quickly, obviating the need for pursuit; and (b) that many orders to pull over are for such minor infractions that officers (either as a matter of their own discretion or departmental policy) decline to initiate pursuit. I don’t think the government has nailed down how common (a) and (b) are. Still, the dangerousness argument here seems considerably stronger than in Chambers, which means that the Court is likely to have to confront the state-of-mind questions.
The threshold question is whether the Begay culpability requirement survives Chambers. Assuming it does, the Court may then have an opportunity to explain more clearly what state of mind is implied by Begay’s ”purposeful, violent, and aggressive” test.
The government’s position on culpability seems to be that it is enough that Sykes was convicted of a crime having as an element that he “knowingly or intentionally” fled from a law enforcement officer.
Sykes, however, cites Judge Posner’s cogent dissent in another ACCA case involving a similar Illinois fleeing statute, Welch v. United States, 604 F.3d 408, 434 (2010). Here is Posner’s position:
Thus I don’t agree that just because the defendant intended to flee from the police his action was “purposeful” within the meaning of the Supreme Court’s formula. Given that the purpose of the catch-all provision in the Armed Career Criminal Act is to enable courts to identify crimes that are similar to the enumerated ones, “purposeful” should be interpreted to mean trying to harm a person’s person or property, which is characteristic of the enumerated crimes. Burglary requires proof of intent to commit a crime following unlawful entry, arson proof of intent to destroy property without legal authority, extortion proof of intent to obtain another person’s property by a threat. These crimes do not merely create a risk of harm, as aggravated fleeing does.
It’s not that the enumerated crimes necessarily are motivated by a desire to hurt anyone. The criminal may simply want the victim’s property. (In an arson case, the victim is often an insurance company-and arsonists don’t dislike insurance companies-rather the contrary!) But to get what he wants he has to harm the victim; purpose to harm is intrinsic to the crime although it often is not the motive. That is not true in a flight case any more than it is true in a DUI case. In both the perpetrator is behaving in a dangerous manner but in neither is he trying to take anything from anyone or otherwise harm anyone. And “although the [fleeing] statute does require intent, the required mental state is only intent to be free of custody, not intent to injure or threaten anyone. It is easy to violate [such a statute] without intending or accomplishing the destruction of property or acting in an aggressive, violence-provoking manner that could jeopardize guards or bystanders.” United States v. Templeton, supra, 543 F.3d at 383.
Dismuke calls aggravated fleeing “aggressive” because it involves defiance of authority. 593 F.3d at 595. But that is true of all escapes-the point of Chambers was that we can’t treat all escapes alike. Dismuke calls fleeing “active” rather than “passive,” id., but all actions are active, yet most are not aggressive. To fail to report to prison when ordered is to defy the authority of the sentencing judge and the Bureau of Prisons. Many acts of civil disobedience are emphatically active and defiant of authority at their core, but are miles away from being aggressive. Dismuke notes the possibility of a future confrontation with authority but that is also a likely consequence of a walkaway escape or a failure to report and is an especially likely consequence of many acts of civil disobedience. Adopting a rule that would exclude from the category of “violent felony” a crime that while it may be dangerous does not involve any intention of harming anyone would go some distance toward clarifying the meaning of “violent felony” and by doing so perhaps check the avalanche of litigation over that meaning.
Assuming the Court plans to stick with a culpability requirement, Posner’s formulation strikes me as quite sensible and consistent with the best understanding of the statute’s purpose.