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June 9, 2011

Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision

There are many interest elements to the Supreme Court's work today on the Armed Career Criminal Act in Sykes (opinion here).  But, as is often the case, the most notable and quotable part of this statutory sentencing ruling comes from Justice Scalia.  In particular, consider how he starts and ends his Sykes dissent:

As the Court's opinion acknowledges, this case is “another in a series,” ante, at 1. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.

As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983)....

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 nittygritty.  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 — indeed, I think it would be highly responsible — to 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.

As the title to this post suggests, I do think it would be a pretty "radical step" to simply lop off the residual clause of ACCA because the courts are struggling to give it clear content.  By the same token, however, I do think such a form of judicial activism would be justifiable for many of the reasons Justice Scalia suggests.  I wonder if readers have the same reaction to both ACCA and Justice Scalia's proposed statutory deletion due to its vagueness.

June 9, 2011 at 10:37 AM | Permalink


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i'm with him. what's that old saying

three strikes and your OUT! this is strike FOUR!

time to either FIX IT or DUMP IT!

Posted by: rodsmith | Jun 9, 2011 12:21:54 PM

There is no question in my mind that the residual/"otherwise" clause should be declared void for vagueness. I've been making this argument in this forum for a while, and I made it in a pleading two weeks ago.

Scalia is 100% correct. The meaning of the residual clause is beyond comprehension. Begay gave us the closest thing to a test in its "purposeful, violent, and aggressive" formulation, but the Court backs away from that in Sykes. Sykes extinguishes the dim light of guidance we had on the meaning of the residual clause.

What are we left with now? The new test is that the "level of risk" involved in the offense is the only inquiry. And we compare a crime's risk level to the example crimes.

That is no guidance at all! The test is primed for insurance agents, actuarial scientists and statisticians! Not for lawyers, judges and the citizen who is expected to conform his conduct.

Is this any way to transform a crime with a stat max of 10 years to one with a mand. min. of 15 years?!

Posted by: DEJ | Jun 9, 2011 1:04:48 PM

Even more damning is his discussion of the majority's reliance on statistics to quantify risk:
"Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery. An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all."

This, together with Scalia's position on the Almendarez-Torres prior conviction exception and his views on the Sixth Amendment and due process, is a pretty potent point.

Posted by: def atty | Jun 9, 2011 1:05:50 PM

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