Life Sentences Blog

The Supreme Court heard oral argument last week in Sykes, the ACCA case.  In an earlier post, I expressed the hope that the Court would use Sykes as an occasion to clarify what culpability is required for a prior conviction to count as an ACCA predicate.  Having now read the argument transcript, I think it is possible that the decision could go off in a number of different directions without adding much clarity to the culpability question.  The transcript also leaves me uncertain about the head count, although Justice Scalia seemed pretty clearly to favor the defendant’s position and Justice Alito the government’s.

Scalia seemed surprisingly receptive to the defendant’s argument that his Indiana fleeing conviction should not be treated as one involving a “serious potential risk of physical injury to another” because Indiana has a separate offense for fleeing that creates a substantial risk of bodily injury.

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The Court hasn’t even heard argument in Sykes, but on Friday agreed to take yet another ACCA case this term.  It’s astonishing how much SCOTUS litigation has been spawned in the past handful of years by this one, relatively brief criminal statute.

The new case, McNeill v. United States (No. 10-5258), deals with a different bit of statutory language than Sykes.  While Sykes involves the meaning of the term “violent felony,” McNeill centers on the interpretation of “serious drug offense.”  Although most of the recent cases focus on “violent felony,” McNeill is by no means the Court’s first encounter with “serious drug offense.”

Here’s what happened in the new case.

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The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).

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In anticipation of oral argument next week in Sykes v. United States, I’ve been thinking about the “categoric approach” the Court has been using to decide whether a prior conviction counts as a “violent felony” under the Armed Career Criminal Act.  (See my post here for background.)  The categoric approach requires an examination of the formal elements of the crime of conviction and a consideration of whether an offense so defined would typically (in the words of the statute) “involve[] conduct that presents a serious potential risk of physical injury to another.”  The alternative would be to consider whether the specific offender’s conduct — as opposed to a typical offender’s conduct – presented a “serious potential risk.”

The statutory language itself strikes me as ambiguous on this point.  Normally, I would favor falling back on the rule of lenity to resolve ambiguities in criminal statutes, but it is not clear to me which way lenity cuts in this setting.  Some defendants would be better off if their own conduct were the focus of the inquiry, while other defendants would benefit from a focus on the typical case.

When the Court first embraced the categoric approach in Taylor v. United States, 495 U.S. 575 (1990), the Court relied on legislative history that seemed to indicate Congress was contemplating the use of generic offense categories. 

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