{"id":12622,"date":"2011-01-06T12:15:21","date_gmt":"2011-01-06T17:15:21","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=12622"},"modified":"2011-01-06T12:20:29","modified_gmt":"2011-01-06T17:20:29","slug":"preview-of-sykes-the-supreme-court%e2%80%99s-latest-acca-case","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/01\/preview-of-sykes-the-supreme-court%e2%80%99s-latest-acca-case\/","title":{"rendered":"Preview of Sykes, the Supreme Court\u2019s Latest ACCA Case"},"content":{"rendered":"

The Supreme Court will hear argument on January 12 in\u00a0Sykes v. United States<\/em>, the latest entry in its recent series of cases on the Armed Career Criminal Act.\u00a0 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\u2019s fifteen-year mandatory minimum.\u00a0 (For background on the ACCA, see my posts\u00a0here<\/a>,\u00a0here<\/a>, and\u00a0here<\/a>.)<\/p>\n

The Court created the state-of-mind problem in\u00a0Begay v. United States<\/em>, 553 U.S. 137 (2008), which held that a prior conviction does not count as a \u201cviolent felony\u201d under the ACCA unless the crime was \u201cpurposeful, violent, and aggressive.\u201d\u00a0 This is a rather mysterious phrase.\u00a0 Although the\u00a0word \u201cpurposeful\u201d is a familiar culpability term, it is not clear what \u201cviolent\u201d and \u201caggressive\u201d are meant to connote in this context.\u00a0 And even \u201cpurposeful\u201d has some ambiguity, as any law student who has ever wrestled with the elusive distinction between \u201cgeneral intent\u201d and \u201cspecific intent\u201d will tell you.<\/p>\n

Begay <\/em>itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.\u00a0 This teaches that\u00a0some <\/em>culpability is indeed required for an offense to count as a \u201cviolent felony,\u201d but\u00a0Begay <\/em>provided little guidance beyond that.<\/p>\n

Then came\u00a0Chambers v. United States<\/em>, 129 S. Ct. 687 (2009). \u00a0<\/p>\n

Chambers <\/em>held that the crime of failing to report to serve a sentence did not count as a violent felony.\u00a0 The Court\u2019s 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.\u00a0 Indeed, the Court approvingly cited Justice Scalia\u2019s concurring opinion in\u00a0Begay<\/em>, which\u00a0rejected <\/em>a culpability requirement in favor of a purely objective approach.\u00a0 Remarkably, the Court made no mention of the\u00a0subjective-objective debate\u00a0in\u00a0Begay. <\/em>Based on the citation to Scalia\u2019s concurrence and the use of an objective approach in\u00a0Chambers<\/em>, I\u2019ve wondered whether the Court is quietly moving towards Scalia\u2019s view.\u00a0 Scalia himself did not write in\u00a0Chambers<\/em>, suggesting that he is satisfied with the Court\u2019s trajectory from\u00a0Begay <\/em>to\u00a0Chambers<\/em>.<\/p>\n

But there is another possibility.\u00a0 Rather than selecting an objective approach over a subjective approach,\u00a0Chambers <\/em>may instead tacitly endorse a two-prong test: to count as an ACCA predicate, an offense must\u00a0satisfy\u00a0both <\/em>a subjective culpability requirement\u00a0and <\/em>an objective dangerousness requirement.\u00a0 Because the\u00a0offense in\u00a0Chambers <\/em>failed the objective test, there was no need to get into the subjective test \u2013\u00a0on this view, the Court\u2019s silence on culpability did not indicate that culpabilty has fallen out of the equation generally, but only on the specific facts of\u00a0Chambers.<\/em><\/p>\n

Although I\u2019ve not seen much express consideration of the question, my impression is that the lower federal courts have generally understood\u00a0Chambers <\/em>in the latter, both\/and sense.<\/p>\n

In the immediate aftermath of\u00a0Begay<\/em>, I wrote\u00a0here<\/a> in favor of Scalia\u2019s purely objective approach.\u00a0 Now I\u2019m not so sure.\u00a0 For one thing, Scalia\u2019s opinion was framed as an either\/or choice between the objective and subjective approaches.\u00a0 If the question is presented that way, I suppose I would still favor the objective approach as more consistent with the statutory language.\u00a0 But, as\u00a0a third option, the two-pronged approach does have some appeal.\u00a0 In the past, I (like Scalia) may have been a little too dismissive of\u00a0the culpability requirement as lacking a clear textual basis.<\/p>\n

Here\u2019s the relevant statutory language:<\/p>\n

[T]he term \u201cviolent felony\u201d means any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives,\u00a0or otherwise involves conduct that presents a serious potential risk of physical injury to another<\/em> . . . .<\/p><\/blockquote>\n

The italicized portion constitutes the so-called residual clause, the interpretation of which has been the task of\u00a0Begay,<\/em> Chambers,<\/em> and now\u00a0Sykes.<\/em> 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. \u00a0Doing 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\u00a0intentionally <\/em>dangerous or harmful conduct would seem more suitable for incapacitation than those who have only acted, say, negligently. \u00a0Yet, a purely objective approach might draw serial carelessness into the ACCA\u2019s incapacitation scheme.<\/p>\n

Indeed, if we are to ascribe any significance to the title of the statute, the phrase \u201ccareer criminal\u201d \u2014 consistent with the references to burglary, arson, and extortion \u2014 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. \u00a0Again, this points to an interpretation of the residual clause that would require a truly blameworthy state of mind (although, to be fair, I\u2019m not so sure\u00a0Begay<\/em>\u2019s \u201cpurposeful, violent, and aggressive\u201d standard precisely captures the nature of the culpability suggested by the phrase \u201ccareer criminal\u201d).<\/p>\n

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. \u00a0This was the dynamic in\u00a0Begay <\/em>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. \u00a0Although I\u2019ve 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. \u00a0Again, judges and lawyers alike might appreciate the ability to resolve the status of some priors without going down the path of such complex litigation.<\/p>\n

Whatever the merits of a subjective prong,\u00a0Sykes <\/em>may provide a good opportunity for the Court to clarify whether such a prong exists and, if so, what exactly the PVA standard means.<\/p>\n

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. \u00a0Was this a \u201cviolent felony\u201d? \u00a0The Seventh Circuit held yes, although at least one other circuit has concluded that a similar crime was not.<\/p>\n

In\u00a0Chambers<\/em>, the Court was able to avoid answering any hard questions about the culpability required for an offense to count as a \u201cviolent felony\u201d because the offense at issue in that case did not satisfy the requirement of objective dangerousness. \u00a0The Court is less likely to reach a similar conclusion in\u00a0Sykes<\/em>.<\/p>\n

Having read the government\u2019s brief, I\u2019m impressed that there is a much more solid case for objective dangerousness in\u00a0Sykes <\/em>than inChambers<\/em>. \u00a0Not airtight, mind you, but still pretty strong.<\/p>\n

The key to the government\u2019s 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. \u00a0And 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. \u00a0I don\u2019t think the government has nailed down how common (a) and (b) are. \u00a0Still, the dangerousness argument here seems considerably stronger than in\u00a0Chambers<\/em>, which means that the Court is likely to have to confront the state-of-mind questions.<\/p>\n

The threshold question is whether the\u00a0Begay <\/em>culpability requirement survives\u00a0Chambers<\/em>. \u00a0Assuming it does, the Court may then have an opportunity to explain more clearly what state of mind is implied by\u00a0Begay<\/em>\u2019s\u00a0\u201dpurposeful, violent, and aggressive\u201d test.<\/p>\n

The government\u2019s position on culpability seems <\/em>to be <\/em>that it is enough that <\/em>Sykes was convicted of a crime having as an element that he \u201cknowingly or intentionally\u201d fled from a law enforcement officer.<\/p>\n

Sykes, however, cites Judge Posner\u2019s cogent dissent in another ACCA case involving a similar Illinois fleeing statute,\u00a0Welch v. United States<\/em>, 604 F.3d 408, 434 (2010). \u00a0Here is Posner\u2019s position:<\/p>\n

Thus I don\u2019t agree that just because the defendant intended to flee from the police his action was \u201cpurposeful\u201d within the meaning of the Supreme Court\u2019s 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, \u201cpurposeful\u201d should be interpreted to mean trying to harm a person\u2019s 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\u2019s property by a threat. These crimes do not merely create a risk of harm, as aggravated fleeing does.<\/p>\n

It\u2019s not that the enumerated crimes necessarily are motivated by a desire to hurt anyone. The criminal may simply want the victim\u2019s property. (In an arson case, the victim is often an insurance company-and arsonists don\u2019t 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 \u201calthough 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.\u201d\u00a0United States v. Templeton, supra<\/em>, 543 F.3d at 383.<\/p>\n

Dismuke<\/em> calls aggravated fleeing \u201caggressive\u201d 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\u2019t treat all escapes alike.\u00a0Dismuke<\/em> calls fleeing \u201cactive\u201d rather than \u201cpassive,\u201d\u00a0id.<\/em>, 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.\u00a0Dismuke<\/em> 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 \u201cviolent felony\u201d 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 \u201cviolent felony\u201d and by doing so perhaps check the avalanche of litigation over that meaning.<\/p><\/blockquote>\n

Assuming the Court plans to stick with a culpability requirement, Posner\u2019s formulation strikes me as quite sensible and consistent with the best understanding of the statute\u2019s purpose.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court will hear argument on January 12 in\u00a0Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.\u00a0 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\u2019s fifteen-year […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,74,23,24],"tags":[],"class_list":["post-12622","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-seventh-circuit","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12622","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=12622"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12622\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=12622"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=12622"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=12622"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}