U.S. Supreme Court

Scalia Blasts ‘Tutti-Frutti’ Majority, Says Career Criminal Law Is Too Fuzzy to Stand

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A dispute over whether a felon is eligible for an increased sentence because he previously fled a police officer has split the court’s two newest justices and produced an acerbic dissent by Justice Antonin Scalia.

The Supreme Court held in a 6-3 opinion (PDF) that the Indiana crime of vehicle flight is a violent felony for purposes of the federal Armed Career Criminal Act. The statute increases the sentence when convicted gun felons have three previous convictions for a violent felony or serious drug offense.

Petitioner Marcus Sykes had pleaded guilty to being a felon in possession of a firearm. He had two previous felony convictions for armed robberies, and he had a third felony conviction under the Indiana law for leading police on a vehicle chase.

Justice Anthony M. Kennedy wrote for the majority that the vehicle flight offense qualifies as a violent felony because it involves serious potential risk of physical injury to others. Kennedy was joined in his majority opinion by four justices, including Justice Sonia Sotomayor. Justice Clarence Thomas concurred in the judgment.

Justice Elena Kagan dissented in an opinion joined by Justice Ruth Bader Ginsburg. They argued that Sykes did not commit a violent felony because he was convicted of only simple vehicular flight, rather than a flight offense involving aggressive or dangerous activity.

In a separate dissent, Justice Antonin Scalia called the majority opinion “tutti-frutti” and criticized its reliance on statistics chronicling the dangers of car chases that made their first appearance in merits briefs.

He argued that the Armed Career Criminal Act is so indefinite that it should be declared void for vagueness.

The case is the court’s fourth attempt since 2007 to define “violent felonies” under the law, Scalia wrote. “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. …

“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.”

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