{"id":13639,"date":"2011-06-09T14:54:58","date_gmt":"2011-06-09T19:54:58","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13639"},"modified":"2011-06-09T14:54:58","modified_gmt":"2011-06-09T19:54:58","slug":"court-backs-away-from-begay","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/06\/court-backs-away-from-begay\/","title":{"rendered":"Court Backs Away From Begay"},"content":{"rendered":"<p>Is the\u00a0<em>Begay<\/em> revolution over? \u00a0In its 2008 decision in\u00a0<em>Begay v. United States<\/em>, the Supreme Court adopted a narrow construction of the Armed Career Criminal Act\u2019s \u201cresidual clause,\u201d limiting the ACCA\u2019s reach to convictions for \u201cpurposeful, violent, and aggressive\u201d crimes. \u00a0(For background, see\u00a0<a href=\"http:\/\/www.lifesentencesblog.com\/?p=1155\">this post<\/a>.) \u00a0The following year, in\u00a0<em>Chambers v. United States<\/em>, the Court again pared back the residual clause, emphasizing the need to demonstrate the objective dangerousness of an offense for it to count as a trigger for the ACCA\u2019s fifteen-year mandatory minimum sentence.<\/p>\n<p>What many observers took from\u00a0<em>Begay<\/em> and\u00a0<em>Chambers <\/em>is that a prior conviction does not count under the ACCA unless it satisfies\u00a0<em>both <\/em>a subjective test (purposeful, violent, and aggressive) and an objective test (statistically demonstrated likelihood of injury).<\/p>\n<p>But, today, in\u00a0<em><a href=\"http:\/\/www.supremecourt.gov\/opinions\/10pdf\/09-11311.pdf\">Sykes v. United States<\/a><\/em><a href=\"http:\/\/www.supremecourt.gov\/opinions\/10pdf\/09-11311.pdf\"> (No. 09-11311)<\/a>, the Court threw this understanding into doubt, suggesting a considerably more expansive interpretation of the residual clause.<\/p>\n<p><!--more--><\/p>\n<p>In<em> <\/em><em>Sykes<\/em>, the Court held that the Indiana crime of vehicular flight from a law enforcement officer counts as a violent felony. \u00a0Here\u2019s the way the Court framed the issue:<\/p>\n<blockquote><p>The question, then, is whether Indiana\u2019s prohibition on flight from an officer by driving a vehicle\u2014the violation of Indiana law for which Sykes sustained his earlier conviction\u2014falls within the residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another. The offenses enumerated in \u00a7924(e)(2)(B)(ii)\u2014burglary, extortion, arson, and crimes involving use of explosives\u2014provide guidance in making this determination. \u00a0(6)<\/p><\/blockquote>\n<p>Even in this preliminary statement of the case, the Court notably omitted any reference to the \u201cpurposeful, violent, and aggressive\u201d language of\u00a0<em>Begay<\/em>, suggesting that the objective test of\u00a0<em>Chambers<\/em> did not so much supplement the subjective test as replace it.<\/p>\n<p>In deciding that Sykes\u2019s crime was sufficiently dangerous to count, the Court emphasized what it felt was the inherent character of the crime, rather than relying primarily on data:<\/p>\n<blockquote><p>Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than\u00a0burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.<\/p>\n<p>Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another. \u00a0(7-8)<\/p><\/blockquote>\n<p>Absent here is any sense that the government must prove dangerousness in a rigorous, empirical fashion, as was suggested by<em>Chambers<\/em> and clearly endorsed by Justice Scalia in his concurring opinion in\u00a0<em>Begay<\/em>.<\/p>\n<p>Although the government did, in fact, provide some decent statistical evidence in\u00a0<em>Sykes<\/em>, the Court seemed to treat this evidence as secondary to \u201ccommon sense\u201d:<\/p>\n<blockquote><p>Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana\u2019s vehicular flight crime is a violent felony. See Chambers, 555 U. S., at 129 (explaining that statistical evidence sometimes \u201chelps provide a conclusive . . . answer\u201d concerning the risks that crimes present). \u00a0(8)<\/p><\/blockquote>\n<p>So what of the purposeful, violent, and aggressive test? \u00a0As I discussed in\u00a0<a href=\"http:\/\/www.lifesentencesblog.com\/?p=1272\">this post<\/a>, the \u201caggressive\u201d component seemed to be an especially big sticking point for some of the justices at oral argument. \u00a0But those concerns are simply nowhere to be seen in the majority opinion. \u00a0Rather, the Court \u2014 in a not very clear fashion \u2014 seemed to want to limit or modify the\u00a0<em>Begay <\/em>test:<\/p>\n<blockquote><p>Sykes argues that, regardless of risk level, typical vehicle flights do not involve the kinds of dangers that the Armed Career Criminal Act\u2019s (ACCA) residual clause demands. In his view this Court\u2019s decisions in Begay and Chambers require ACCA predicates to be purposeful, violent, and aggressive in ways that vehicle flight is not. Sykes, in taking this position, overreads the opinions of this Court.<\/p>\n<p>ACCA limits the residual clause to crimes \u201ctypically committed by those whom one normally labels \u2018armed career criminals,\u2019\u201d that is, crimes that \u201cshow an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.\u201d Begay, 553 U. S., at 146. In general, levels of risk divide crimes that qualify from those that do not. See, e.g., James, 550 U. S. 192 (finding attempted burglary risky enough to qualify). Chambers is no exception. 555 U. S., at ___\u2013___ (slip op., at 5\u20136) (explaining that failure to report does not qualify because the typical offender is not \u201csignificantly more likely than others to attack, or physically to resist, an apprehender\u201d).<\/p>\n<p>The sole decision of this Court concerning the reach of ACCA\u2019s residual clause in which risk was not the dispositive factor is Begay, which held that driving under the influence (DUI) is not an ACCA predicate. There, the Court stated that DUI is not purposeful, violent, and aggressive. 553 U. S., at 145\u2013148. But the Court also gave a more specific reason for its holding. \u201c[T]he conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate,\u201d id., at 145 (analogizing DUI to strict-liability, negligence, and recklessness crimes). By contrast, the Indiana statute at issue here has a stringent mens rea requirement. Violators must act \u201cknowingly or intentionally.\u201d Ind. Code \u00a735\u201344\u2013 3\u20133(a); see Woodward, 770 N. E. 2d, at 901 (construing the\u00a0statute to require \u201ca knowing attempt to escape law enforcement\u201d (internal quotation marks omitted)).<\/p>\n<p>The phrase \u201cpurposeful, violent, and aggressive\u201d has no precise textual link to the residual clause, which requires that an ACCA predicate \u201cotherwise involv[e] conduct that presents a serious potential risk of physical injury to another.\u201d \u00a7924(e)(2)(B)(ii). The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.<\/p>\n<p>Begay involved a crime akin to strict liability, negligence, and recklessness crimes; and the purposeful, violent, and aggressive formulation was used in that case to explain the result. The felony at issue here is not a strict liability, negligence, or recklessness crime and because it is, for the reasons stated and as a categorical matter, similar in risk to the listed crimes, it is a crime that \u201cotherwise involves conduct that presents a serious potential risk of physical injury to another.\u201d \u00a7924(e)(2)(B)(ii). \u00a0(10-11)<\/p><\/blockquote>\n<p>So where does this leave us? \u00a0\u201dIn general, levels of risk divide crimes that qualify from those that do not,\u201d the Court said. \u00a0Objective dangerousness thus seems to be the \u201cgeneral\u201d test to use; other considerations will come into play, at most, in unusual circumstances. \u00a0Such circumstances may be present when there is \u201ca crime akin to strict liability, negligence, and recklessness crimes.\u201d \u00a0But a felony with a \u201cknowing\u201d\u00a0<em>mens rea<\/em>, like Indiana\u2019s vehicular fleeing offense, will not require anything more than objective dangerousness in order to count as an ACCA predicate.<\/p>\n<p>Even as to crimes in the strict liability\/negligence\/recklessness category, it is not clear that the Court is still committed to the \u201cpurposeful, violent, and aggressive\u201d test. \u00a0The majority went out of its way to highlight the test\u2019s lack of a \u201ctextual link\u201d and to observe that\u00a0<em>Begay<\/em> itself was the Court\u2019s \u201csole decision\u201d to rely on the test. \u00a0Moreover, in noting that \u201c[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk,\u201d the Court may be signaling an interest in collapsing the one test into the other.<\/p>\n<p>Bottom line: it\u2019s hard to say whether we will be seeing the Court use the \u201cpurposeful, violent, and aggressive\u201d formulation ever again. \u00a0This seems a remarkable place to end up in\u00a0<em>Sykes<\/em>, given how much effort was expended in the briefs and oral argument on the question of whether vehicular flight satisfied the test \u2014 which everyone, including the government, seemed to assume would apply.<\/p>\n<p>In her dissenting opinion, Justice Kagan noted this issue, but seemed more sanguine about the future of the \u201cpurposeful, violent, and aggressive\u201d test:<\/p>\n<blockquote><p>I understand the majority to retain the \u201cpurposeful, violent, and aggressive\u201d test, but to conclude that it is \u201credundant\u201d in this case. See ante, at 11. Like JUSTICE SCALIA, see ante, at 3 (dissenting opinion), I find this conclusion puzzling. I do not think the majority could mean to limit the test to \u201cstrict liability, negligence, and recklessness crimes.\u201d Ante, at 11 (majority opinion).\tAs JUSTICE SCALIA notes, see ante, at 3, that would be to eliminate the test\u2019s focus on \u201cviolence\u201d and \u201caggression.\u201d And it would collide with Chambers v. United States, 555 U. S. 122 (2009)\u2014a decision the majority cites approvingly, see ante, at 8\u2014which applied the test to an intentional crime. See 555 U. S., at 128 (opinion of the Court), 130 (Appendix A to opinion of the Court) (holding that \u201cknowin[g] fail[ure] to report to a penal institution\u201d does not involve \u201cpurposeful, violent, or aggressive conduct\u201d (internal quotation marks omitted)). So I assume this test will make a resurgence\u2014that it will be declared non-redundant\u2014the next time the Court considers a crime, whether intentional or not, that involves risk of injury but not aggression or violence. \u00a0(Kagan dissent, 2 n.1)<\/p><\/blockquote>\n<p>Justice Scalia\u2019s dissent is quite remarkable and deserves much attention for its aggressive use of the \u201cvoid for vagueness\u201d doctrine. \u00a0Here is what he says:<\/p>\n<blockquote><p>Today\u2019s opinion, which adds to the \u201cclosest analog\u201d test (James) the \u201cpurposeful, violent, and aggressive\u201d test (Begay), and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute\u2019s application clear and predictable. And all of them together\u2014or even the risky-as-the-least-risky test alone, I am now convinced\u2014never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.<\/p>\n<p>That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not \u201cgive a person of ordinary intelligence fair notice\u201d 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\u2019s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase \u201cotherwise involves conduct that presents a serious potential risk of physical injury to another\u201d 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. \u00a0(Scalia dissent, 7)<\/p><\/blockquote>\n<p>His dissent closes with a well-deserved shot across Congress\u2019s bow:<\/p>\n<blockquote><p>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 nitty-gritty. 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\u2014indeed, I think it would be highly responsible\u2014to 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. \u00a0(9)<\/p><\/blockquote>\n<p>Cross posted at <a href=\"http:\/\/www.lifesentencesblog.com\/\">Life Sentences Blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Is the\u00a0Begay revolution over? \u00a0In its 2008 decision in\u00a0Begay v. United States, the Supreme Court adopted a narrow construction of the Armed Career Criminal Act\u2019s \u201cresidual clause,\u201d limiting the ACCA\u2019s reach to convictions for \u201cpurposeful, violent, and aggressive\u201d crimes. \u00a0(For background, see\u00a0this post.) \u00a0The following year, in\u00a0Chambers v. United States, the Court again pared back [&hellip;]<\/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":[30,28,74,24],"tags":[],"class_list":["post-13639","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13639","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=13639"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13639\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13639"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13639"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13639"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}