Is the Begay revolution over? In its 2008 decision in Begay v. United States, the Supreme Court adopted a narrow construction of the Armed Career Criminal Act’s “residual clause,” limiting the ACCA’s reach to convictions for “purposeful, violent, and aggressive” crimes. (For background, see this post.) The following year, in Chambers v. United States, the Court again pared back the residual clause, emphasizing the need to demonstrate the objective dangerousness of an offense for it to count as a trigger for the ACCA’s fifteen-year mandatory minimum sentence.
What many observers took from Begay and Chambers is that a prior conviction does not count under the ACCA unless it satisfies both a subjective test (purposeful, violent, and aggressive) and an objective test (statistically demonstrated likelihood of injury).
In Sykes, the Court held that the Indiana crime of vehicular flight from a law enforcement officer counts as a violent felony. Here’s the way the Court framed the issue:
The question, then, is whether Indiana’s prohibition on flight from an officer by driving a vehicle—the violation of Indiana law for which Sykes sustained his earlier conviction—falls within the residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another. The offenses enumerated in §924(e)(2)(B)(ii)—burglary, extortion, arson, and crimes involving use of explosives—provide guidance in making this determination. (6)
Even in this preliminary statement of the case, the Court notably omitted any reference to the “purposeful, violent, and aggressive” language of Begay, suggesting that the objective test of Chambers did not so much supplement the subjective test as replace it.
In deciding that Sykes’s crime was sufficiently dangerous to count, the Court emphasized what it felt was the inherent character of the crime, rather than relying primarily on data:
Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.
Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another. (7-8)
Absent here is any sense that the government must prove dangerousness in a rigorous, empirical fashion, as was suggested by Chambers and clearly endorsed by Justice Scalia in his concurring opinion in Begay.
Although the government did, in fact, provide some decent statistical evidence in Sykes, the Court seemed to treat this evidence as secondary to “common sense”:
Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony. See Chambers, 555 U. S., at 129 (explaining that statistical evidence sometimes “helps provide a conclusive . . . answer” concerning the risks that crimes present). (8)
So what of the purposeful, violent, and aggressive test? As I discussed in this post, the “aggressive” component seemed to be an especially big sticking point for some of the justices at oral argument. But those concerns are simply nowhere to be seen in the majority opinion. Rather, the Court — in a not very clear fashion — seemed to want to limit or modify the Begay test:
Sykes argues that, regardless of risk level, typical vehicle flights do not involve the kinds of dangers that the Armed Career Criminal Act’s (ACCA) residual clause demands. In his view this Court’s decisions in Begay and Chambers require ACCA predicates to be purposeful, violent, and aggressive in ways that vehicle flight is not. Sykes, in taking this position, overreads the opinions of this Court.
ACCA limits the residual clause to crimes “typically committed by those whom one normally labels ‘armed career criminals,’” that is, crimes that “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay, 553 U. S., at 146. In general, levels of risk divide crimes that qualify from those that do not. See, e.g., James, 550 U. S. 192 (finding attempted burglary risky enough to qualify). Chambers is no exception. 555 U. S., at ___–___ (slip op., at 5–6) (explaining that failure to report does not qualify because the typical offender is not “significantly more likely than others to attack, or physically to resist, an apprehender”).
The sole decision of this Court concerning the reach of ACCA’s residual clause in which risk was not the dispositive factor is Begay, which held that driving under the influence (DUI) is not an ACCA predicate. There, the Court stated that DUI is not purposeful, violent, and aggressive. 553 U. S., at 145–148. But the Court also gave a more specific reason for its holding. “[T]he conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate,” id., at 145 (analogizing DUI to strict-liability, negligence, and recklessness crimes). By contrast, the Indiana statute at issue here has a stringent mens rea requirement. Violators must act “knowingly or intentionally.” Ind. Code §35–44– 3–3(a); see Woodward, 770 N. E. 2d, at 901 (construing the statute to require “a knowing attempt to escape law enforcement” (internal quotation marks omitted)).
The phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.
Begay involved a crime akin to strict liability, negligence, and recklessness crimes; and the purposeful, violent, and aggressive formulation was used in that case to explain the result. The felony at issue here is not a strict liability, negligence, or recklessness crime and because it is, for the reasons stated and as a categorical matter, similar in risk to the listed crimes, it is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). (10-11)
So where does this leave us? “In general, levels of risk divide crimes that qualify from those that do not,” the Court said. Objective dangerousness thus seems to be the “general” test to use; other considerations will come into play, at most, in unusual circumstances. Such circumstances may be present when there is “a crime akin to strict liability, negligence, and recklessness crimes.” But a felony with a “knowing” mens rea, like Indiana’s vehicular fleeing offense, will not require anything more than objective dangerousness in order to count as an ACCA predicate.
Even as to crimes in the strict liability/negligence/recklessness category, it is not clear that the Court is still committed to the “purposeful, violent, and aggressive” test. The majority went out of its way to highlight the test’s lack of a “textual link” and to observe that Begay itself was the Court’s “sole decision” to rely on the test. Moreover, in noting that “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk,” the Court may be signaling an interest in collapsing the one test into the other.
Bottom line: it’s hard to say whether we will be seeing the Court use the “purposeful, violent, and aggressive” formulation ever again. This seems a remarkable place to end up in Sykes, given how much effort was expended in the briefs and oral argument on the question of whether vehicular flight satisfied the test — which everyone, including the government, seemed to assume would apply.
In her dissenting opinion, Justice Kagan noted this issue, but seemed more sanguine about the future of the “purposeful, violent, and aggressive” test:
I understand the majority to retain the “purposeful, violent, and aggressive” test, but to conclude that it is “redundant” in this case. See ante, at 11. Like JUSTICE SCALIA, see ante, at 3 (dissenting opinion), I find this conclusion puzzling. I do not think the majority could mean to limit the test to “strict liability, negligence, and recklessness crimes.” Ante, at 11 (majority opinion). As JUSTICE SCALIA notes, see ante, at 3, that would be to eliminate the test’s focus on “violence” and “aggression.” And it would collide with Chambers v. United States, 555 U. S. 122 (2009)—a decision the majority cites approvingly, see ante, at 8—which applied the test to an intentional crime. See 555 U. S., at 128 (opinion of the Court), 130 (Appendix A to opinion of the Court) (holding that “knowin[g] fail[ure] to report to a penal institution” does not involve “purposeful, violent, or aggressive conduct” (internal quotation marks omitted)). So I assume this test will make a resurgence—that it will be declared non-redundant—the next time the Court considers a crime, whether intentional or not, that involves risk of injury but not aggression or violence. (Kagan dissent, 2 n.1)
Justice Scalia’s dissent is quite remarkable and deserves much attention for its aggressive use of the “void for vagueness” doctrine. Here is what he says:
Today’s opinion, which adds to the “closest analog” test (James) the “purposeful, violent, and aggressive” test (Begay), and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute’s application clear and predictable. And all of them together—or even the risky-as-the-least-risky test alone, I am now convinced—never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.
That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinary intelligence fair notice” of its reach, United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted), and that permits, indeed invites, arbitrary enforcement, see Kolender, 461 U. S., at 357. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task. (Scalia dissent, 7)
His dissent closes with a well-deserved shot across Congress’s bow:
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent. (9)
Cross posted at MU Law Faculty Blog.