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April 16, 2008

Early thoughts on Begay and Burgess

Though the Supreme Court's Baze lethal injection decision will surely be the focus of SCOTUS discussion today (early coverage here and here and here), the Justices handed down two non-killer Bs today with decision in Begay and Burgess (basics here).  For the vast majority of federal state criminal practitioners, these two "little" rulings may be much more consequential than the high-profile Baze ruling.

In part because I likely will not be able to avoid being caught up in the maze of Baze, I hope the very insightful readers of this blog will use the comments to help give me a running start on the import and possible impact of the Justices' work in Begay and Burgess.  I will begin the discussion with two quick observations:

  1. The vote line-up in Begay is fascinating: Justice Breyer writes the main opinion which has the Chief and Justices Stevens, Kennedy and Ginsburg signed on; Justice Scalia concurred separately, and Justice Alito filed the main dissent which Justices Souter and Thomas signed on.  It seems that statutory interpretation and criminal justice can make for some unexpected bedfellows.
  2. Begay was argued back in January at the same time as a similar case, Rodriquez, but we do not get that decision today.  This suggests to me that the Justices are finding Rodriquez even more challenging and/or divisive as Rodriquez.

April 16, 2008 at 10:56 AM | Permalink


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Douglas Berman was correct when he said that this decision is more important to your average federal criminal defense attorney than the lethal injection ruling in Baze. Here is the skinny: The United States Supreme Court has decided the Begay [Read More]

Tracked on Apr 16, 2008 3:43:50 PM


Except that RBG has accused everyone else of not even being able to pick a theory of statutory construction and stick with it.

Posted by: S.cotus | Apr 16, 2008 11:36:53 AM

It seems odd to me that so many people, including Prof Berman, are celebrating Baze as a triumph of federalism. If this is a constitutional question -- i.e., the 8th Amendment does or does not forbid a certain action -- then a great deal of uniformity is required. This was the rationale for incorporating the Bill of Rights; after the civil war we had grown uncomfortable with merely delegating to the states the duty of determining the scope and content of federal rights. It is, after all, the job of federal courts to define federal law. Moreover, a certain justice recently stressed this view repeatedly in a dissent. Danforth v. Minnesota (2008) (Roberts, J., dissenting) (rejecting the call to federalism as to questions of constitutional law and specifically decrying approaches that migh allow the Constitution to be "applied differently in every one of the several states.").

I suspect that Justice Roberts will be alarmed by Prof. Berman's view that Baze creates an opportunity for varying interpretations of the 8th Amendment. After all, only a couple months ago Justice Roberts wrote that a "single sovereigns's law should be applied equally to all" and noted that the Court's role is that of the "final arbiter of federal law, both as to its meaning and its reach, and the accompanying duty to ensure uniformity of that federal law."

Posted by: zarathustra | Apr 16, 2008 3:22:04 PM

Thoughts on Begay:
1) The three opinions come down to a difference on the implication of "otherwise," even though all opinions agree on the word's definition. The majority feels the word means that non-listed crimes "can" be both similar and different than the enumerated crimes, (slip at 6), and concludes that they must be similar in that they involve purposeful, violent, and aggressive conduct. Scalia feels that "otherwise" means that non-listed crimes must be similar with the enumerated crimes only in one way: that they all create risk. (concur at 3-4). In this way, he's more in line with the dissent on this point. Scalia differs from the dissent, however, because he believes that in the interest of clarity/certainty (see his James dissent), the enumerated crimes set a floor on how much of a risk is needed. (concur at 2,6). The dissent, again, believes that "otherwise" means that the only issue for courts to consider is whethre a risk is present. Nothing more...no floor on risk, as Scalia would have it.

2) While I don't know if I agree with Scalia's stat. interp. 100%, I do think he raised potent criticism of the majority's approach, two ways in particular. i) As in James, he says the majority's interpretation fails to "provide a complete framework that will embrace all future cases." (concur at 3). He labels the majority's approach as "made-for-the-case improvisation," "piecemeal, suspenseful, [and my personal favorite] Scrabble-like." (Id.). And he quite correctly, IMO, points out that the dist. and appl. courts are left with only "enjoyable speculation" on how to resolve the next case. ii) Scalia also criticizes the majority for doing exactly what they hope to avoid - reading superfolous clauses into the statute. In essence, he points out that crimes that have as an element the use of force necessarily are "purposeful, violent, and aggressive." (concur at 6). The first clause, even under the majority approach, is thus "rendered superfluous".

3) The implications of the opinion are large. Not only does it affect the ACCA statue, but its reasoning should equally apply to similarly worded statutes (see, e.g., USSG 4B1.2).

4) Justice Scalia's disent struck a cord with me b/c, as I was reading the opinion, I was thinking "well, what about escape," "what about evading arrest," "what about felon in possession", ect. The opinion leave us to "speculate" on whether these crimes now come within the ambit of the "otherwise" clause. (certainly, so does Scalia's approach, but to a much less degree). I guess that's okay, though, because I always enjoyed Scrabble. (See concur at 3).

5) I believe the majority allows one to still argue that the "otherwise clause" is limited to property crimes. While this argument was presented to SCOTUS and while the majority did not include it in their trifecta of similarities (i.e. "purposeful, violent, aggressive"), the Court endorses a description of the legislative history showing that clause (ii) was meant for property crimes that risk personal injury. (Maj. at 6).

6) Regarding risk: Scalia believes you measure risk by comparing the number of incidents versus the number of injuries (concur at 7). In light of this, I find the dissent's statistic interesting that for every 250-2000 DUI incidents, only 1 arrest is made.

7) Finally, I'll sum up the majority opinion in this way: The new framework for determining whether a crime comes within the ambit of the ACCA’s "otherwise" clause is to ask: 1) does the crime involve "purposeful, violent, and aggressive conduct" (maj. at 7); 2) does the crime show BOTH a callousness toward risk and an increase likelihood that the offender is the kind of person who might deliberately shoot someone (maj. at 8); and 3) [if you want to aggressively litigate the issue] is the offense a property crime that also presents a serious risk of injury to a person?

Posted by: DEJ | Apr 17, 2008 12:10:14 PM

One final point on Begay: As Alito in dissent implies, the Court's opinion in Rodriguez may (depending on how they rule) make this particular issue (i.e. DUI recidivist statutes as "felonies") pointless. See dissent at 2 & fn.1.

Posted by: DEJ | Apr 17, 2008 12:50:18 PM

Three thoughts on Burgess:

1) In my opinion, the Court probably got the statutory interpretation correct. First, Congress could have easily written 802(44) differently if the petitioner's argument was correct. (Slip at 6). Even more convincing is Congress's amendment to the definition in 1994. (Slip at 9).

2) While it likely true that Congress amended the statute in 1994 to implement "a uniform federal standard based on the authorized term of imprisonment" (Slip at 10), that outcome is significant and unfortunate. There are several (many?) states where a misdemeanor drug crime is punishable by more than one year. The vast majority of these prior convictions for misdemeanors offenses (from what I have seen) involved small drug amounts. I also think it is likely that the vast majority of individuals pled guilty to these misdemeanor offenses: 1) just to get out of custody via a time served sentence, 2) because they knew, even though the statute allowed for it, they would not get more than a 1 year sentence, or 3) because their attorney said "don't worry, this is just a misdemeanor."

3) Either the states individually or Congress need to recognize the consequences of their statutory scheme (i.e. prior conviction for quite minor conduct leads to drastic federal sentencing results in the future). And attorneys practicing in states that have these type of misdemeanor statutes need to recognize the potential consequnce of their client pleading guilty to the -- at the time -- seemingly minor offense.

Posted by: DEJ | Apr 18, 2008 12:07:34 PM

The most important consideration after suffering a personal injury is to seek appropriate medical attention at the earliest possible opportunity. In the most serious cases, an ambulance should be called to the scene of your accident, and treatment administered on site before you are taken to hospital.

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