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April 18, 2007

A few quick reactions to James

A too-quick read of today's James opinion (basics here) prompts these first-cut reactions:

1.  Except for Justice Thomas (who pens a brief solo dissent to state again his modern opposition to the prior conviction exception), nobody seems concerned about the Sixth Amendment implications of having judges assess what might qualify as a "violent felony" under the Armed Career Criminal Act.  The majority opinion says this is a non-issue because in "determining whether attempted burglary under Florida law qualifies as a violent felony under §924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding."  The main dissent does not engage this issue, suggesting only Justice Thomas disagrees.

2.  In light of point 1, just why did this little opinion in a little criminal case take so long?  My gut instinct is that there was a "fight" over Justice Souter's vote and perhaps also Justice Breyer's vote.  Justice Scalia's dissent seems awfully lengthy and detailed for a dissent, and there are passages of Justice Alito's majority opinion in James that seem written to hold on to five votes.  (See, e.g., point 3 below, discussing a classic Breyerian passage in the majority opinion.)

3.  In a passage that is notable with Claiborne and Rita pending, the James majority opinion gives the US Sentencing Commission and its guidelines much more credit than deserved.  At pages 12-13, the James majority discusses the "crime of violence" definition in the career-offender guideline which parallels the "violent felony" term under ACCA at issue in James.  In this discussion, the majority quotes a 1992 opinion from then-Judge Breyer as part of a claim that the career-offender guideline is "based on the Commission's review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses."  In fact, I think that the USSC's own research generally shows considerable dysfunction in the operation of the career-offender guideline.  Moreover, crack sentencing realities highlight that USSC's empirical research is not always ― indeed, is not often ― reflected in its guidelines.

4.  As I will explain more fully in a subsequent post, Justice Scalia's dissent reveals that Justice Scalia is continuing his modern tendency to channel Justice Brennan through his votes and opinions in non-capital criminal cases.

5.  What about the rule of lenity?  Justice Scalia mention the rule of lenity only once in passing in his dissent, and the majority does not engage the point.  There can be little doubt that the statute being interpreted in James is vague and debatable (indeed, Justice Scalia suggests it is unconstitutionally vague).  Isn't James exactly the type of case in which the rule of lenity ought to serve as a decisive canon of construction?

April 18, 2007 at 12:05 PM | Permalink

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Comments

I'm surprised that with more than 24 hours having lapsed since the opinion issued, this blog has said next to nothing about the guts of the James opinion: the Court's first-attempt at interpreting the "residual" definition of violent felony -- a definition the Courts of Appeals have used as a creative writing exercise to figure out how every crime carries a serious potential risk of violence, no matter how non-violent the elements that define it. Is there any significance to Alito's emphasis on the elements of the predicate offense as a means to stem the tendency of appellate courts' to find a potential risk not in the actual commission of the crime, but in the risk of resistance to subsequent arrest?

Scalia, Stevens and Ginsburg specifically note the anomalous use of DUI as a violent felony and pose the question "which of the enumerated violent felonies bears any semblance to DUI?" The point seems entirely valid.

Dear Professor Berman, you seem more concerned that Scalia might care "too much" about defendants getting more time than Congress actually or clearly authorized. I'd expect this type of complaint from Sam Waterston or Fred Thompson on "Law and Order", but not a purportedly serious, academic blog.

It seems more and more this blog takes a view of criminal justice system as a choice between a good team (prosecutors and prosecution-biased judges) and a bad team (defendants and defense attorneys whom you cast as hating crime victims). I worry all the more about the goal of impartial justice in this country.

Posted by: opcit | Apr 19, 2007 12:00:56 PM

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Posted by: DFDF | Jul 29, 2007 1:13:48 AM

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