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May 5, 2008

Terrific analysis of Justices' wacka ACCA work

Writing over at CO, Anita Krishnakumar has this fantastic new post, titled "Dejá-Vu in Begay v. United States," examining the struggles that the Supreme Court has been having with application of the Armed Career Criminal Act.  Here is the "upshot" of her analysis:

Justices Alito, Souter, and Thomas have proved the most committed to the statutory text in the context of this criminal sentencing enhancement, even when the resulting outcome is not-so-palatable to them.  (Their Begay dissent openly expresses sympathy for the result produced by the majority, but laments the majority's construction as irreconcileable with the text).  Justice Scalia has proved consistent, across cases, in applying the rather atextual, but Rule-of-Lenity-inspired, construction which he concocted to limit the reach of an ambiguous criminal statute. Justices Stevens and Ginsburg have proved somewhat mysterious, and arguably inconsistent, in their reasoning with respect to this particular sentencing enhancment. And Justices Breyer, Roberts, and Kennedy have proved rather common-law-judge-like in their willingness to tweak the applicable test for this sentencing enhancement (adding on a "similar in kind" requirement) in order to achieve their version of justice on a case-by-case, ad-hoc, basis.

The only think missing from Anita's analsyis is an assessment of what all this might mean for Rodriquez, the other notable ACCA case still pending before the Justices.

May 5, 2008 at 04:54 PM | Permalink

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