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.
I say surprising because Scalia’s concurring opinion in Begay seemed to endorse a strictly statistical approach to the residual clause — a felony must be at least as statistically dangerous as burglary to count. In Sykes, however, the defendant’s argument seems to be that the structure of the Indiana criminal code disqualified the defendant’s prior conviction without regard to statistics.
Perhaps Scalia’s receptivity to this position should not be surprising, though, because it does offer a nicely formalistic way to resolve the case — I imagine that Scalia finds it much more appealing to parse statutory language than to sort out the criminological research.
I think other justices might have been willing to go for this approach, too, but for an oddity of Indiana law: although it seems like the fleeing with substantial risk crime should function as an aggravated form of the generic fleeing crime, both crimes are classified as Class D felonies. Because the punishment is the same, there is no apparent reason for a prosecutor to charge the “risky fleeing” offense — which would impose on the prosecutor the burden of proving an extra element — and hence no reason to assume that a defendant charged only with generic fleeing did not create serious risk. Justices Breyer, Kagan, and Sotomayor all seemed stuck on this point (although Sotomayor suggested that the difficulty might be overcome if prosecutors had an incentive to go for risky fleeing because it could trigger an habitual offender enhancement that generic fleeing could not).
Sotomayor (along with Chief Justice Roberts) seemed more interested in the question of whether Sykes’s crime was “aggressive.” The term comes from the Begay majority opinion’s “purposeful, violent, aggressive” formulation. I did not sense any pushback from Scalia (who resisted this formulation in Begay) or any other Justice, so it seems unlikely that the Court will turn away from this aspect of Begay in Sykes (even though Chambers might be read as setting the stage for such a move).
Based on Roberts’s questions, I would not be surprised if the Court held that Sykes’s fleeing offense did not count as an ACCA predicate because it was not “aggressive.” Consider, for instance, this comment:
CHIEF JUSTICE ROBERTS: Another word is ”aggressive” in Begay, and that’s where I have a little difficulty with your argument. It seems to me, this is the exact opposite of aggressive. He’s running away. Certainly the other option is to turn and confront, and he doesn’t want to. There’s nothing aggressive about running away.
On the other hand, both Roberts and Sotomayor seemed troubled by how to reconcile a ruling for Sykes with the Court’s statement in Chambers that escape from prison would be a “violent felony”:
JUSTICE SOTOMAYOR: Could you succinctly tell me how this is any less purposeful, aggressive, or violent than escape from custody?
. . .
CHIEF JUSTICE ROBERTS: Well, it’s, for me, anyway, an important question. I’ll — I’m not sure the ordinary case does. I assume the ordinary prison escape is — I don’t know — over the wall, under the tunnel or, you know, while the guard’s looking a different way, or some — I don’t know that it’s typical that when the guard is there, you say, now’s my chance. The typical case doesn’t involve aggression.
If the Court finds that the Indiana fleeing offense satisfies the PVA test — and Roberts, for one, made clear that he thinks aggression is the only question on that front — then the Court would have to engage with the question of the objective dangerousness of the offense. That seemed to be a premise that was taken for granted by both advocates and all of the Justices.
It’s not clear, though, how the Justices would analyze this prong. Although the government was pushing its data on the dangerousness of police pursuit, the Justices seemed much less engaged by this aspect of the argument than they were by the PVA issues. A couple of questions touched on only glancingly were (1) to what extent does the government bear a burden of statistical proof, as opposed to being able to rely on commonsense intuition; and (2) the weight to be accorded to the facts from specific cases involving highly risky behavior that were reported in the media or in published judicial decisions. (Roberts, for one, expressed considerable skepticism of the government’s reliance on such cases.)
Although the Justices did not comment much one way or another on the government’s police pursuit statistics, there was an interesting exchange in which Roberts raised the question I raised in my earlier post: since police do not have to pursue fleeing motorists, is it fair to equate the dangerousness of pursuit with the dangerousness of flight? Here’s Roberts:
I thought there was a development of best police practices that you don’t just chase people. You know, if they’re going 30 miles an hour over the speed limit through a school zone, that doesn’t mean the police officer should do that. You know, you call ahead, they put these strips on the road, whatever.