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October 6, 2009

Justice Scalia again seems to be the federal defendant's best friend in ACCA argument

Anyone who really follows the Supreme Court's criminal justice work should already know that the usual, knee-jerk labels and expectations concerning liberal/conservative voting patterns, though often holding true in capital cases and police practice cases, almost never hold true in the context of constitutional trial procedure and federal criminal statutory interpretation cases.  The latest data point on this front can be found in the full transcript of oral argument in Johnson v. US (08-6925), which is available at this link

Johnson is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA).  Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute.  In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

There are other tea leaves worth reading for real ACCA junkies in the Johnson transcript, though it is hard to come away from the transcript without agreeing with Justice Alito's well-articulated view in an earlier ACCA case that Congress need to fix via a new statute the very messy and opaque jurisprudence that the Supreme Court's ACCA decision have now produced.

October 6, 2009 at 06:48 PM | Permalink


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I'll re-post this here, after commenting on an earlier post:

Johnson was a very weird argument.

In his questions, Justice Breyer seemed to not understand what the definition of "element" is. The subsection at issue in Johnson, is whether the prior crime has "as an element" the use of physical force. Breyer seems like he acknowledges that "physical force" is not required in all FL battery convictions, yet he wants to say that it still satisfies that subsection because in the typical case it will involve "physical force." Breyer, in determining whether a prior has "as an element" the use of force, seems to ask whether force will be used in the "mine run" of cases. That's just the obviously wrong approach under the plain language of subsection (1), as an “element” must be present in ALL cases, not just the typical ones.

(NOTE: Ms. Call did a good job of explaining the difference between subsection (1) (at issue in Johnson) and subsection (2). The latter, like subsection 1, also only considers the offense's elements. But, unlike subsection 1, under subsection 2, you then ask whether looking at those elements, the typical case will come within the "otherwise"/residual clause. I'm not sure that Breyer ever understood the very key difference between the two ACCA subsections.)

Ginsburg didn't seem to understand the "element" concept either, suggesting the prior should count if, in fact, physical force was used, regardless of whether such was necessary for conviction.

Scalia thinks that Congress can use the phrase "physical force" in one statute and have it mean one thing, while use the exact phrase in another statute, and have it mean an entirely different thing. I'll grant you that "context" is important in legislative interpretation, but this just seems odd. (I agree, he is most certainly pro-defendant in this case).

Roberts and Alito seem to think that subsection (1) "tracks the language" of common-law battery when that subsection used the term "physical force." Yet common law battery deals with "unwanted touches." Even if you equate the two concepts (as the government argues they should be equated), this is hardly a "tracking." If Congress had wanted to "track" common law battery, they would have said "unwanted touching."

Finally, Sotomayer seemed to agree that "physical force" requires something more violent than an unwanted touch, but she disagreed with the defendants because it shouldn't require the likelihood of causing injury.

Posted by: DEJ | Oct 6, 2009 7:03:27 PM

DEJ. I agree with much of your analysis. I actually thought Ms. Call did an outstanding job as well.

I disagree with you and I agree with Scalia. Why is the position that Congress can use the word to mean one thing in one law and use it another way in another law odd. We do it all the time in ordinary speech. If anything, it's odd to insistent that words have the same meaning. If there is anything the oral argument shows it's that the word "force" can mean many different things. And that's right. It has more than one dictionary definition. Heck, there are words in the English language where a word can be its own antonym.

I came away with no clue as to what the court will do however.

Posted by: Daniel | Oct 6, 2009 7:36:01 PM

I figure this will come down to how Sotomayor lands on the pragmatist/formalist line. Everyone else on the court has a pretty solid voting record in these sorts of cases.

Posted by: Soronel Haetir | Oct 6, 2009 8:39:32 PM

Doug, I believe Justices Scalia and Stevens raised the really interesting issue here, which is whether or not recidivism can elevate a misdemeanor to a felony?

I have argued for years that a prior conviction cannot be used , consistently with the double jeopardy clause , as an element of a substantive crime. Parke v Raley says habitual felon statutes pass double jeopardy muster because they do not define substantive crimes, they are a sentence enhancer for a separate crime.

The answer to Justice Stevens' question, in NC, is that it happens all the time, in my opinion improperly. Breaking into a coin machine the second time is a felony instead of a misdemeanor. Driving while impaired, if committed too often, ceases being a misdemeanor and becomes a felony.

Justice Scalia brings up this issue early in the argument and then hones in on it toward the end, first he says that he doubts congress ever thought about misdemeanors becoming felonies due to recidivism, and then says,"Have we ever approved that, by the way, kicking it(a misdemeanor) up to the felony category simply because of recidivism?"

I can't think of an example where they have done that and can think of a real big example of where the court specifically says that prior convictions are not considered to be elements of crime--the Apprendi Rule. "Other than a prior conviction...."

I just don't see how the def here committed a violent felony, leaving everything else aside, if the crime is a felony due only to recidivism. To me, it is a misdemeanor with the sentence enhanced due to recidivism. (which is okay under Almendarez Torrez, much to Justice Thomas' chagrin)

bruce cunningham

Posted by: bruce cunningham | Oct 6, 2009 10:37:06 PM

I remember you mentioning this before and offering to provide details in email. I hope that offer still stands. Scalia's comment struck a chord with me too. While not federal statutes, the Court did affirm California's wobbler Three Strikes cases. Of course the case could be made that California did contemplate a misdemeanor becoming a felony as the Third Strike, so maybe SCOTUS ruled on federalism grounds, but did the voters and the legislature actually consider it? Counties now are very reluctant to use a wobbler as the Third Strike and maybe none of them do any longer.

It would be fascinating to be a fly on the wall in the conference on this case.

Posted by: George | Oct 6, 2009 11:01:13 PM

Bruce, as either an advocate or another justice explained to Justice Scalia, the Court had approved, in United States v. Rodriguez, the use of a felony as a qualifying conviction in an ACCA case that was only a felony because of a recidivism enhancement.

And thanks to the first commentator. I had intended to make the same point. It's fairly sobering to read how utterly clueless Breyer is on these issues. You'd think he was on the Fifth Circuit or something.

Posted by: Bail | Oct 6, 2009 11:22:33 PM

George, I don't think the Court "affirmed California's wobbler three strikes cases" in Ewing and Andrade. They simply addressed an Eighth Amendment challenge to the sentence and dealt with an as applied, not a facial, challenge to the three strikes law.

I have done a lot of work, and raised many challenges, so far unsuccessfully, to this issue. To me, it is the biggest issue going--what is the nature of a prior conviction? I do not believe a prior conviction can, consistent with the double jeopardy clause, serve as an element of a substantive offense.

We have many examples of this issue in NC, brought about mainly by the legislature wanting to micromanage criminal sentencing and constrain judicial discretion.

As I mentioned above, even the Apprendi Rule can be read so as to exclude prior convictions from being elements of crime, because they don't have to be proven to a jury beyond a reasonable doubt.

The reach of this argument also extends to such "crimes" as Possession of Firearm by a Convicted Felon and Failure to Register as a Sex Offender, both of which have a prior conviction as an essential component.

I'll try to do better this time and send you some briefs, motions, arguments, etc all centered around the same proposition that a prior conviction cannot be an element of a crime.

bruce cunningham

Posted by: bruce cunningham | Oct 6, 2009 11:31:36 PM

Bruce, for the record, I forgot about that discussion and never sent you an email. Maybe you're just being gracious and hopefully you don't think you failed to follow through in any way. Email sent this time.

Posted by: George | Oct 7, 2009 12:32:23 AM

Bail, but does United States v. Rodriguez address the question Scalia asked? Can that include misdemeanors charged as felonies? What about the separation of powers in that case? Can the legislature delegate to the executive or the judicial branch the decision to charge as a misdemeanor or a felony? If so, isn't there fact finding in that process? If so, does that bypass fact finding by a jury? If so, is it constitutional?

I think this is the gist of Bruce's argument if I understand it correctly.

Posted by: George | Oct 7, 2009 12:41:13 AM

And first blush I must say that Bruce's argument seems off the wall to me. I don't see the problem. But he comes across as a rational person so I'll assume for the moment I just don't understand his point.

"As I mentioned above, even the Apprendi Rule can be read so as to exclude prior convictions from being elements of crime, because they don't have to be proven to a jury beyond a reasonable doubt."

How? A prior conviction, assuming it is final, is final. It can't be relitigated in any sense of the term. You seem to be suggesting that the state has to prove its case twice, which is nonsensical. If necessary, submitting some paperwork to "prove" to a jury there was a conviction might be necessary but really that is overweening.

"I do not believe a prior conviction can, consistent with the double jeopardy clause, serve as an element of a substantive offense."

I just don't get this. Why not? How is the person being put in jeopardy again? One might argue that he's being punished again for the same crime but that's an ex post facto issue not jeopardy.

Posted by: Daniel | Oct 7, 2009 1:45:46 AM

I also fail to see recidivism as part of an offense as a problem. We have other laws that take life status into account, domestic violence being an example that comes to mind. In order to qualify as DV there must in fact be some form of domestic arrangement. Just because two people happen to be in a building together does not turn an otherwise ordinary assault into DV. DV does not in fact even require being in the domicile, though that seems to be the usual location.

There are other such crimes, even white collar such as bribery.

I just don't see where the fact of a prior conviction that was proven beyond reasonable doubt cannot be such a condition. Now, if you were to try and base an element off of previous arrest I think you would have a problem, but convictions are in fact final.

As for the wobbler issue, legislatures give the executive vast choices in how to prosecute any given offender. Misdemeanor and felony assault come to mind. AFAIK the executive has to choose at the time of indictment which form of the crime is to be invoked. Only if a judge at a later trial got to decide whether a prior conviction was a misdemeanor or felony would I see a problem here. Mostly I see such wobblers as a way for prosecutors to show occasional mercy by providing that a normal felonious offense shall be treated as a misdemeanor in a particular instance.

Given the number of times Bruce C. has asserted that this is somehow a problem I too would be interested in a more clear exposition of why. Especially since he seems to have made little or no headway with the argument in the courts.

Posted by: Soronel Haetir | Oct 7, 2009 2:21:27 AM

In California it is necessary to prove a prior conviction beyond a reasonable doubt to enhance a sentence based on that conviction, for example for Three Strikes, and the evidence is documentary in nature. I think that is pretty well settled.

Wobblers though are felonies unless the prosecutor or judge lowers it to a misdemeanor. That would require facts. Facts must be proven to a jury. Maybe it is unconstitutional to drop a de facto felony to a misdemeanor then because it requires fact finding, though who is going to challenge it? Perhaps someone whose wobbler was not dropped to a misdemeanor has standing because by law it was not legal to drop it to a misdemeanor even if the judge wanted to. Therefore, all wobblers are unconstitutional unless the facts needed to determine misdemeanor/felony are found by a jury.

The counter argument is the ADA has discretion, but does it reach far enough to find the necessary facts without a jury? The consequences can be at least as severe as what Scalia questioned, and more severe, 25 to life. Maybe I'm reading too much into Scalia's remark, but it seems like an invitation.

Posted by: George | Oct 7, 2009 3:23:23 AM

Breyer, worked in the Senate or House during the time of "sentencing reform" and he buys into it.
Scalia and he are at odds for some reason. Scalia likes to use the Crawford and especially the Apprendi line of cases (welcome to Apprendi-Land) to chide Breyer. Scalia is the "Liberal" on these important cases and Breyer is some sort of dork out there thinking about defending "reform".
It is so odd that it defies gravity. The dissenters in Melendez-Diaz v. Mass. this past term have set forth their 'sky is falling down theory' best and leave Scalia the champion of the Constitution and the dissenters the champions of prosecutorial efficiency. Souter (one of the 5 versus the 4) has retired and it remains to be seen where the new ex prosecutor will line up. My bet is that she will line up with the 'sky is falling down'. So, in the Briscoe case a new majority will hold that the Confrontation Clause is back to zilch.

I have been wondering why you folks on this blog have not seen the Scalia "Liberalism" in its real form over these past few years. Read: Jones v. U.S. (1999), then Apprendi; shift to Confrontation Clause: Crawford, then Melendez-Diaz v. Mass. this past term.

Posted by: mpb | Oct 7, 2009 3:29:07 AM

Scalia liberalism takes the form of support for defendants only in ordering more lawyer procedure. To his credit, Scalia voted against providing terrorists with lawyers in Boumedienne.

Posted by: Supremacy Claus | Oct 7, 2009 5:31:24 AM

Scalia, not the federal defendant's best friend; the rent seeking lawyer's best friend.

Posted by: Supremacy Claus | Oct 7, 2009 7:30:52 AM

Daniel, I agree that "force" can have several meanings. However, I think Scalia's comments are odd for two reasons: 1) Scalia is a "plain language" judge, and 2) the phrase "use of physical force" is being repeatedly used in a definition (i.e. in order to define other statutory terms).

Concerning the first point, Scalia would not be one of the first Justices who would jump to mind if you asked me to name one who thinks words can have different meanings if repeatedly used by Congress. He is so in favor of plain language interpretations and so against resort to other common statutory interpretive methods, that he, IMO, would normally be reluctant to make such a comment.

Concerning the second point, when Congress repeatedly uses the phrase "use of physical force" in its attempt to define various other statutory phrases, then it seems to me to that be a term of art. I think it would be less odd if "force" was used in a statute to identify an element, and the word itself was undefined. However, in both the ACCA and the misd. crime of DV statute, the phrase "use of physical force" is the definition. When the phrase itself IS used to define other concepts, it would seem to me that Congress meant it to mean the same thing in all places that definition is used.

Finally, I'll point out that even if the phrase "use of physical force" (when it's utilized as a definition) must have a consistent meaning, that does not hurt Respondent's position in Johnson. In inserting that phrase to define "misdemeanor crime of domestic violence" Congress consistently said it was intending to reach VIOLENT individuals who BEAT their wives/children. When used as a definition, even in the 922 context, it seems Congressmen intend "use of physical force" to mean violence. And this, again, takes me back to my first point. Scalia's reluctance to look at such interpretive methods seems odd, especially if you admit that "force" can mean different things.

Posted by: DEJ | Oct 7, 2009 12:16:04 PM

George et al, thanks for the questions.
I'll spell out the various arguments that I am relying on.

It is related to Doug's Offense Characteristic/Offender Characteristic dichomtomy.

In other words, recidivism is not related to what someone did on the date of offense. It relates to who someone is. A person with a prior record.

The argument is also related to the presumption of regularity of court judgments. You cannot collaterally attack a prior conviction, so how can you challenge it during a trial when it is used as an element.

It is related to double jeopardy. Habitual felon laws have passed double jeopardy muster because they are not crimes. Parke v Raley.

It is related to Apprendi. Apprendi says a fact which increases potential for punishment above the Blakely max is an element of a greater , aggravated offense. Except for prior convictions. So, prior convictions can increase sentence but not increase crimes, or be an element of crime.

It is related to separation of powers, as George said. Only the legislature can define the parameters of punishment for a crime. It cannot be delegeated to the judiciary or executive, without running afoul of separation of powers, not to mention bills of attainder.

Robinson v California is clear that in the US we don't punish someone for who or what they are, just for what they do.

How many commenters are trial lawyers who have ever had to defend a recidivist offense ? It can't be done, since the only issue is whether the def is who they say he is and whether the clerk of court keeps good records.

thanks for the questions.

bruce cunningham

Posted by: bruce cunningham | Oct 7, 2009 3:49:38 PM


I've seen successful defenses based on a felon not in fact knowing they were a felon.

I also don't buy your "increase crime" comment. Sorry, I just don't. By choosing to commit the first felony and getting caught and convicted certain penalties attach. One of which is being cut less slack for any future run-ins with the legal system.

If we were to try and extend your logic to where I see it going we could not in fact punish a felon whose rights have not been restored for attempting to vote. Being a felon is in fact a needed element of such an offense. Same with attempting to purchase a firearm (not talking possession here, just failing the instant background check).

In neither case do I see you being able to make a successful argument that a prior conviction cannot be part of a current offense. The offense is in fact for what the previously convicted person is doing now.

Posted by: Soronel Haetir | Oct 7, 2009 4:17:33 PM

Bruce C., as much as your argument should work, how can it? To me the tougher statutes based on prior convictions is like a police interrogator promising a lighter sentenced to get a confession and then reneging on it after the suspect gave up his/her right to remain silent. In the plea bargaining context, it is the same, except the defendant gives up all his/her rights and then the state reneges 20 years later. A person who committed two felonies 20 years ago may not be, probably is not, the same person who commits a wobbler today. The law doesn't care. In this sense, the sentence isn't even based on who a person is, but is based on who a person was. However, Powell v. Texas distinguished Robinson v California.

Recidivism enhancements are based on behavior, and there is a rebuttable presumption that due process was done (even if it wasn't, and by copping a plea, the defendant gives up all rights to prove it wasn't). So the past crimes were matters of behavior and the present enhanceable crime (the current charge)is also founded on behavior, not who the person is. If the defendant is acquitted of the current charge, no enhancement by priors. And if no priors (evidence of enhanceable previous behavior) no enhancement of the current charge. But all are based on a finding of previous convictions (behavior)after affording all the process that was due.

Maybe a narrower fight would work, one based on the wobbler argument. But then, I'm only a Google lawyer hobbyist that would be interested in hearing if the lawyers think it could have any merit at all.

Posted by: George | Oct 7, 2009 4:38:29 PM

George. I think you strike at the heart of the weakness in Bruce's argument.

"recidivism is not related to what someone did on the date of offense. It relates to who someone is. A person with a prior record."

I don't buy that at all; in fact I think it is patently untrue. As George says, it is based upon behavior. And who the offender is is much more than just their behavior; if this were not so than any concept of intentionality or mens rea in the law would be pointless.

The second problem I have is the idea that the prior conviction is being used as an element of a crime. I don't see it that way at all. It's being used to enhance a crime but it is not an element of an underlying crime. One isn't required to have a prior conviction for battery to commit battery; that would make battery circular and thus impossible. Even if the prior conviction turns a lessor offense into a stronger offense it's still not a element. In this case the prior conviction serves the same function as a catalyst does in a chemical reaction. And no chemist would consider a catalyst an element in the underlying reaction.

Posted by: Daniel | Oct 7, 2009 8:05:03 PM

thanks, all, for the comments.

The burden of proving all elements of a crime is on the state. Prior convictions are presumed valid and the law is clear that if you want to challenge the validity of a conviction you have to do it in the original case, not a later one. I do a lot of post conviction work and convictions may not be collaterally attacked.

Daniel asks about double jeopardy. That is the classic reason why I think prior convictions cannot be elements of crime. Read the cases, like Parke, which explain why recidivist laws don't violate double jeopardy. It is because the def is not being punished twice for the original offense. They are punished more severely for the current offense due to their status as a recidivist. I don't have a problem with enhanced punishment based on recidivism. Are you familiar with Brown v Ohio's rule that for Fifth amendment purposes greater offenses and lesser offenses are the same offense? I think that concept applies here since the proof of guilt to Possession of Firearm by a Felon automatically proves the def is a convicted felon. Therefore, if the def has been punished for the lesser offense he can't be punished again for the greater offense.

Soronel if you don't buy the concept of increased crime, then you don't buy Apprendi and we're just of two different minds. Read carefully Thomas' concurrence in Apprendi or Part III of Scalia's opinion inSattazahn v Penn or Scalia's majority opinion in Blakely. I don't see how you can doubt that these cases stand for the proposition, correctly, that we no longer have aggravated sentences, only aggravated crimes.

I am not saying that convicted felons who possess guns can't be punished. they can, but in my opinion they can be punished for violating a condition or consequence of the original conviction, not committing a new crime. It is like contempt, to which the sixth amendment does not apply.

The biggest problem area is a recidivist offense triggering the application of a recidivist enhancement.

George, as you have alluded to , I believe all wobbler offenses are unconstitutional because prosecutors or judges should not have the power to pick and choose when a crime is a misdemeanor and when it is a felony. It violates separation of powers.

All this is probably hard for folks to get their heads around unless they started trying cases back before the legislatures started micromanaging sentencing. we never had this issue in the early 70's. Back then the only role of prior convictions was to elevate punishment within the range of punishment allowed for conviction of the crime itself. It was never possible to use a prior conviction as part of the definition of the crime itself, it was only used to increase punishment.

thanks for the stimulating conversation

bruce c

Posted by: bruce cunningham | Oct 7, 2009 8:20:54 PM

"It was never possible to use a prior conviction as part of the definition of the crime itself, it was only used to increase punishment."

Ahhhh, this is what you mean by an element of the offense. You might have something there. However, if like in California, that element is proved beyond a reasonable doubt, or admitted by the defendant, what's the problem? Double jeoprody!

Do I get it?

Posted by: George | Oct 7, 2009 10:28:34 PM

Bruce C,

Unless I am missing something, which is entirely possible, I do not believe your statement that a prior conviction was never an element of an offense to be true. Is it not, and has it not been, for a significant time period been a crime for someone to vote, or possibly attempt to vote, or even register to vote if their civil rights have been stripped? (Ignoring that such charges are rarely pursued even when people are caught.) Or are you going to say that it is the civil rights stripping that is the element, despite the fact that all of the language I've seen in this area refers to persons who have been convicted of whatever class of felony and not had their civil rights restored? The language I've seen does not seem to require proof that civil rights have been stripped, only the fact of a prior conviction without restoration.

Aprendi got us started down this path, but I'm not sure it can be relied on for very much beyond the core that any fact used to sentence outside the statutory range for the crime of conviction must be found beyond reasonable doubt by a jury, with the exception of fact of prior conviction. This doesn't say anything at all about what actions, inactions or conditions can form the basis of a conviction to begin with.

I don't see that applying in the recidivist context because the convict is now facing a charge of (as an example) felon in possession of a firearm. I see two basic elements here (1) a prior felony conviction (2) possession of a firearm. The statutory range is whatever it is and the sentence must fall within that range. I would think that the prior felony would have to be proved to the jury, although I would also expect most defendants to stipulate the prior felony and somehow try fighting the possession element.

Recidivist DUI seems entirely in line with this as well. (1) Intoxication (2) Driving (3) Prior DUI conviction(s).

So long as the idea that a prior conviction can in fact form part of the base for a new charge I don't see any problem here. I don't even see a problem with recidivist DUI being a felony instead of a misdemeanor, misdemeanor DUI has the elements of intoxication and driving, felony DUI has the added element of prior DUI conviction(s).

I fear you are going to have a very hard time convincing anyone who is not a defense attorney that the fact of a prior conviction coupled with some new action or inaction cannot be an element of a new offense. There are simply too many such offenses now, used so regularly. Now, if the offense were simply being a convict I think you would make headway, but even the sexual offender restrictions require the added element of being somewhere verboten.

Even the three strikes situation has a specific exception from the Aprendi beyond reasonable doubt standard for going above the otherwise applicable statutory maximum. Aprendi specifically states that the fact of prior conviction need not be proven beyond reasonable doubt. I'm not sure any standard has actually been litigated on that issue, it doesn't seem like it would be a winning strategy very often.

Wow, I think I just about said enough with this post.

Posted by: Soronel Haetir | Oct 7, 2009 11:44:15 PM

Bruce. I appreciate your responses but now I just think you're babbling. Brown v Ohio doesn't mean at all what you seem to think it means.

Assume the definition of petty larceny is stealing $500 and grand larceny is stealing $1000. If someone steals $1500 from Jones the prosecutor can't charge him with both petty larceny and grand larceny; he has to chose so as to not violate double jeopardy. But that because each legal crime can only be applied to one unique fact pattern. If he steals $500 from Jones and $1000 from Paul, he certainly can be charged with both petty larceny and grand larceny.

Take Felon in Possession. A man robs a bank with a gun. The prosecutor tries him for the robbery and gets a conviction. Then the prosecutor turns around and on that same case charges him with felon in possession because he's now a convicted bank robber. That's the type of nonsense that Brown v Ohio outlaws.

That's not all the fact pattern were are talking about. The conviction and the subsequent charge don't relate to the same unique set of facts; the same case. That's what is meant by the conviction being final: it creates a disjunction in time. It's discrete. It's separate.

Posted by: Daniel | Oct 8, 2009 12:30:01 AM

Status crime should be re-enacted. It should be unlawful to be a repeat violent offender. In most cases, the person is the problem. The lawyer would like to have a trial over the tiniest of infractions, then do it again, and again. The penalty should be permanent incapacitation.

Posted by: Supremacy Claus | Oct 8, 2009 6:33:43 AM

I agree with George that Scalia's comment can be seen as an invitation and I plan to accept it as such as soon as possible by submitting to the court a cert petition raising the paradigm example of what I am talking about. The crime in North Carolina of "Habitual DWI as an Habitual Felon"

The law here is if you commit DWI once it is a misdemeanor. If you are convicted three times of DWI within 7 years, then the crime of DWI becomes a felony. I think that is exactly what Scalia is talking about, and Stevens as well.

I have no problem with punishing a recidivist DWI more severely based on his record. It would be a misdemeanor with punishment greater than first offense DWI.

But, here is the rub. If the DWI becomes a felony, then the State can use it to trigger the use of the Habitual Felon Law, and impose enormous punishment, above the range of Armed Robbery and SEcond Degree Rape.

This is what happened in Johnson. The prior assault became a felony due to recidivism. Our Court of Appeals has approved this scenario in a convuluted opinion which says if the def claims double jeopardy, then Hab DWI is simply a sentence enhancer. However, if the def claims that if Hab DWI is simply a misdemeanor with an enhanced sentence, then it is a substantive felony.

Yes, George, you've got it.


Posted by: bruce cunningham | Oct 8, 2009 7:56:36 AM

Daniel, I've been trying to think of an analogy that the defense and an opposing analogy that the state could use. It's tricky. You wrote:

"Assume the definition of petty larceny is stealing $500 and grand larceny is stealing $1000."

What if someone committed petty larceny for $500 ten years ago, and commits another petty larceny for $500 today. The state charges grand larceny because $500 + $500 = $1000. In other words, the state uses the previous petty larceny as an element of the current crime. Does the current or the previous petty larceny make it grand larceny? They are indistinguishable. This, I think, is closer to what Bruce is arguing. Indeed, he argues this tricky enhancement is written into the statutes. The argument may not go anywhere but you have to admit it is intuitively unfair on its face from this point of view.

Posted by: George | Oct 8, 2009 11:06:14 AM

Will this thread accept posts or will this one get lost in cyberspace too?

Posted by: George | Oct 8, 2009 11:36:59 AM

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