As Justice Scalia exIII. The Supreme Court’s plained, “It is not the Application of the Residual job of this Court to Clause Prior to Johnson Turning now to the residual clause, the impose a clarity which Supreme Court decided four cases involving (and devised just as many meth- the text [of the residual ods for interpreting) ACCA’s residual clause] itself does not clause prior to Johnson. The first challenge was brought in James v. United honestly contain. And States, in which the Court held that Florida’s attempted burglary statute fell even if that were our within ACCA’s residual clause because job, the further reality the risk posed by attempted burglary was deemed comparable to that posed by its closest analog among the enumer- is that we have by now ated offenses, completed burglary. demonstrated our The Court’s decision drew a strong inability to accomplish dissent from Justice Scalia, joined by the task. Justices Stevens and Ginsburg, who
statute was not covered by the residual clause because, as in Begay, the offense does not involve purposeful, violent, and aggressive conduct. The Chambers Court’s conclusion was buttressed by statistics provided by the United States Sentencing Commission, demonstrating that of the 160 failure to report offenses committed over a two-year period, none involved violence.26
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complained, “If we are not going to deny effect to this statute as being impermissibly vague . . . we have the responsibility to derive from the test rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.”21 Although obviously already concerned about the vagueness of ACCA’s residual clause, and confessing to lack “an all-encompassing solution that provides for crystal-clear application of the statute in all contexts,” Justice Scalia initially sought to retain the residual clause. 22 To that end, and driven by the rule of lenity, Justice Scalia promoted an approach that limited application of the residual clause to prior offenses posing a degree of risk “no lesser than the risk posed by the
least dangerous” enumerated crimes – burglary.23 In the second pre-Johnson case, the Court held in Begay v. United States24 that New Mexico’s offense of driving under the influence did not fall within the residual clause. The Court reasoned that the offense was not “roughly similar, in kind as well as in degree of risk posed, to the examples” in the enumerated offense clause because DUI usually does not involve purposeful, violent, and aggressive conduct.25 Next came Chambers v. United States, in which the Court held that Illinois’s failure to report to a penal institution
The final pre-Johnson decision came in Sykes v. United States,27 in which the Court held that the residual clause covered Indiana’s offense of vehicular flight from a law enforcement officer. As explained by the Sykes majority, “[a] criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others.”28 Vehicular flight was also deemed to present a “more certain risk as a categorical matter than burglary.”29 Support for these assessments was provided by certain statistical studies of harm created by vehicular flight.30 The Court’s decision in Sykes drew another strong dissent from Justice Scalia. This time, instead of trying to formulate a workable approach to applying the residual clause, Justice Scalia declared it was time the Court “admit that ACCA’s residual provision is a drafting failure and declare it void for vague-
26 Id. at 129. The Court rejected the government’s reliance on three reported cases over a 30-year period in which a defendant committed violence after failing to report. Id. at 129-30. 27 564 U.S. 1 (2011).
19 550 U.S. 192 (2007). 20 Id. at 203.
23 Id. at 219, 225 (Scalia, J., dissenting)
28 Id. at 2273.
21 Id. at 217 (Scalia, J., dissenting).
24 553 U.S. 137 (2008).
29 Id. at 2274.
22 Id. at 216-17 (Scalia, J., dissenting)
25 Id. at 143, 145
30 Id. at 2274-75.
Continued on next page Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers
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