One of the most fundamental premises of laws prohibiting criminal conduct is that they give fair notice to potential violators of the conduct that’s going to land them in big trouble. Some laws are fairly good about that, such as intentional murder. Others not so good, such as depraved indifference murder.
But one law, the Armed Career Criminal Act, is really awful. In its effort to leave no potential bad guy unscathed, the law is so vague and overinclusive as to those people whose compliance with it is demanded clueless as to its terms. How do I know this? Because it requires a Supreme Court decision, time and again, to decide what is and what’s not covered, what is and what’s not a “violent felony.” And so it did again in Sykes v. United States.
And who better to call it what it is then Nino Scalia, via Jonathan Adler at Volokh Conspiracy :
For those readers whose sensibilities are offended by clarity, you may not enjoy Scalia’s smacks quite as much as I do. My apologies for asking you to read such harsh and unpleasant language. But it’s not over yet. As Josh Blackman notes, Scalia called the majority decision “tutti-frutti.” For the non-lawyers reading this, it’s not Latin for “absurdly inconsistent,” but Little Richard for “fabulous.”Justice Scalia’s dissent in Sykes v. United States chastises his colleagues for continuing a futile effort to bring clarity to what constitutes a “violent felony” under the Armed Career Criminal Act. It begins:
As the Court’s opinion acknowledges, this case is another in a series.” More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(
(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States
Reports.As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.
But he’s not done. Here is how the opinion concludes.
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 nittygritty. 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.
The underlying case, involving the question of whether low-speed flight from police is sufficient to constitute a risk of violence, another in the ongoing series of rhetorical threats to life and limb captured under a law whose purpose is to gild the lily. So what else is new?
What’s new is the gelling of the Law Enforcement Majority:
The lineup is also unusual, uniting the law-and-order Justices: Kennedy, Robets, Breyer, Alito, and Sotomayor. This mirrors the lineup in Michigan v. Bryant. I think we see a new “Law and Order” majority.
Lest he feel left out, Clarence Thomas concurs in result.
The critical observation, which cuts to the chase, is Justice Scalia’s observation of Congress enacting poorly drafted, vague laws that make for far better press conferences than meaningful, constitutionally acceptable proscriptions on conduct. They just keep passing laws, spouting how they’ve saved society from the evil du jour, and then leave it to the courts to clean up the mess after the fact.
Not only is this not the court’s job, but it makes it impossible for anyone to figure out whether they have violated the law until after a string of decisions, from the trial court all the way to Washington, says so. It’s little use to a fellow to find out a couple of years later what the law prohibits.
For those who don’t care for Nino’s rough language and saucy pen, his Sykes dissent is a wonderful demonstration of why he’s perceived as too brusque, too cutting to persuade his colleagues to rally around him and reach a consensus, if not unanimity.
Would it really make you feel better about the Supreme Court if these huge differences in opinion were swept under the rug, and the constitutionality of laws like the ACCA which no one can quite figure out was left to a rousing chorus of Kumbaya? Or is it better that one tart-tongued justice shows the will to call out bad law even when he would be just as happy to throw anyone who eludes capture in prison for life anyway.
Give Justice Scalia his due. Without Nino, who would state the obvious?
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I also liked his terse opinion in DePierre yesterday. “Our holding here is that the statutory term ‘cocaine base’ refers to cocaine base.”
And also the bit where he tells off the majority for discussing the legislative history, when that would give people the false impression that the legislative history would have affected the Court’s decision one way or the other in this particular case.
Reference to leg history is always a hoot when a statute says exactly what it means, since we all know that the only reason to consider leg history is to resolve an ambiguity, like the meaning of “cocaine base” being, well, cocaine base. Cracks me up (sorry).
Yeah, don’t blow it and try to read between the lines.
I’m really surprised by this dissent from Scalia. A vague tool that can be made to fit a variety of circumstances, which the government can use to add more time to a felon’s sentence? Do I have the gist of the problem right?
From his past performance it seems like Scalia should be falling all over himself defending that. Just let him mention something about the ‘new professionalism’ of prosecutors and the deal is sealed.
And misapplications would then be situational errors, and outliers, and most likely involve ‘good faith’ on the part of the prosecutor who erroneously yet with good intentions brought this tool to bear.