Thursday, January 13, 2011

Is it Violent if You're Running Away?

Slate has this entertaining summary of yesterday's oral arguments in the U.S. Supreme Court case of Sykes v. United States.


Marcus Sykes pled guilty to being a felon in possession of a firearm.  In federal court, that charge can win you a 15-year mandatory minimum sentence if you are an armed career criminal -- i.e., you have three prior convictions for a "violent felony."  The problem:  what is a violent felony?  The Armed Career Criminal Act (ACCA) includes a laundry list of state and federal crimes that qualify, but not every crime imaginable -- which has led to a veritable swamp of ACCA litigation.  In Sykes' case, was his conviction for resisting arrest by fleeing in his car a "violent felony"?  Here are some highlights from the Supreme Court justices during oral arguments:
Justice Samuel Alito, for instance, has found a case in which intentional vehicular flight led to "a 45-minute high-speed chase" in which "officers shot at the defendant's truck at least 20 times" while the "defendant drove over 100 miles an hour and at times drove into the oncoming traffic lane."
[Justice] Scalia, on the other hand, thinks that fast fleeing is just not such a violent activity: "Do words mean nothing?" he asks, mournfully, of Assistant Solicitor General Jeffrey B. Wall. "I mean, we're talking about a violent felony. That's what the federal law requires. And you want us to hold that failing to stop when a police officer tells you to stop is a violent felony. That seems to me a big leap."
[Chief Justice] Roberts gently chides Wall, who argues that fleeing in a vehicle is by definition aggressive: "It seems to me, this is the exact opposite of aggressive. He's running away. Certainly the other option is to turn and confront, and he doesn't want to. There's nothing aggressive about running away." He adds: "Those are the three words, 'purposeful, violent, and aggressive.' I'll give you purposeful, I'll give you violent, but aggressive?"
Scalia then asks whether speeding is also a violent felony, and Justice Elena Kagan asks whether drag racing or running away on foot are violent felonies as well. Everyone agrees that running away from a prison on foot is a felony because the case law says as much, but nobody seems to agree on whether fast driving from the cops is violent or aggressive, or why.
The extrapolations -- was this a Dukes of Hazzard-type chase or more of a Blues Brothers chase? -- seem endless.  But the consequences are anything but laughable:  the difference between having three violent felonies instead of two is the difference between a mandatory 15 years and no mandatory minimum at all.  And in the realm of ACCA, it's often an appellate court -- and, increasingly, the U.S. Supreme Court -- that has to decide.

Why not abolish the ACCA mandatory minimum altogether and let another court -- the district court -- decide if someone is really an armed career criminal who deserves a lengthy sentence?  District courts can look at a defendant, his entire criminal history, and the unique facts of each and every prior conviction and decide for themselves whether a defendant deserves 15 years, 15 months, or something in between.  The problem with ACCA isn’t a lack of clarity, but a one-size-fits-all solution for a group of offenders who are anything but one size.

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