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).
Chambers held that the crime of failing to report to serve a sentence did not count as a violent felony. The Court’s relatively brief analysis paid very little attention to state-of-mind considerations, but focused more on objective dangerousness, including data showing low levels of violence associated with the offense. Indeed, the Court approvingly cited Justice Scalia’s concurring opinion in Begay, which rejected a culpability requirement in favor of a purely objective approach. Remarkably, the Court made no mention of the subjective-objective debate in Begay. Based on the citation to Scalia’s concurrence and the use of an objective approach in Chambers, I’ve wondered whether the Court is quietly moving towards Scalia’s view. Scalia himself did not write in Chambers, suggesting that he is satisfied with the Court’s trajectory from Begay to Chambers.
But there is another possibility. Rather than selecting an objective approach over a subjective approach, Chambers may instead tacitly endorse a two-prong test: to count as an ACCA predicate, an offense must satisfy both a subjective culpability requirement and an objective dangerousness requirement. Because the offense in Chambers failed the objective test, there was no need to get into the subjective test – on this view, the Court’s silence on culpability did not indicate that culpabilty has fallen out of the equation generally, but only on the specific facts of Chambers.
Although I’ve not seen much express consideration of the question, my impression is that the lower federal courts have generally understood Chambers in the latter, both/and sense.
In the immediate aftermath of Begay, I wrote here in favor of Scalia’s purely objective approach. Now I’m not so sure. For one thing, Scalia’s opinion was framed as an either/or choice between the objective and subjective approaches. If the question is presented that way, I suppose I would still favor the objective approach as more consistent with the statutory language. But, as a third option, the two-pronged approach does have some appeal. In the past, I (like Scalia) may have been a little too dismissive of the culpability requirement as lacking a clear textual basis.
Here’s the relevant statutory language:
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .
The italicized portion constitutes the so-called residual clause, the interpretation of which has been the task of Begay, Chambers, and now Sykes. The way that this clause is paired up with three familiar crimes that do have substantial culpability requirements (burglary, arson, and extortion) provides support for interpreting the residual clause also to have a culpability requirement. Doing so is also consistent with the evident purpose of the ACCA, which is to deliver extended incapacitation to the most dangerous offenders; recidivists whose record indicates a pattern of intentionally dangerous or harmful conduct would seem more suitable for incapacitation than those who have only acted, say, negligently. Yet, a purely objective approach might draw serial carelessness into the ACCA’s incapacitation scheme.
Indeed, if we are to ascribe any significance to the title of the statute, the phrase “career criminal” — consistent with the references to burglary, arson, and extortion — connotes a repeat offender who is committing crime for a living, i.e., is motivated to achieve pecuniary gain by wrongfully depriving others of their property. Again, this points to an interpretation of the residual clause that would require a truly blameworthy state of mind (although, to be fair, I’m not so sure Begay‘s “purposeful, violent, and aggressive” standard precisely captures the nature of the culpability suggested by the phrase “career criminal”).
There may also be some appeal to a subjective prong insofar as it permits some priors to be knocked out as ACCA predicates quickly and easily without requiring the extensive litigation that might be required to answer the complex empirical question of how dangerous a given category of crime is. This was the dynamic in Begay itself, in which the Court used the PVA standard as a way to avoid answering the uncertain question of how dangerous is the typical instance of DUI. Although I’ve not yet noticed any indication of this in the case law, such questions of objective dangerousness seem to invite the use of expert witnesses on statistics and criminology. Again, judges and lawyers alike might appreciate the ability to resolve the status of some priors without going down the path of such complex litigation.
Whatever the merits of a subjective prong, Sykes may provide a good opportunity for the Court to clarify whether such a prong exists and, if so, what exactly the PVA standard means.
But this post is already getting a bit lengthy, so I’ll elaborate tomorrow on how Sykes tees up the important state-of-mind questions.