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The Problem of Vague Criminal Laws


Today’s Supreme Curt decision Sykes v. U.S. is the fourth recent decision attempting to interpret the clause of the Armed Career Criminal Act that mandates higher sentences for people convicted of 3 or more “violent felonies.” The interpretive problem is what constitutes a “violent felony.” Today, the court determined that vehicular flight from the police counts as a violent felony even if the conviction didn’t involve dangerous or reckless driving. The matchup is unusual — Kennedy joined by the inevitably statist George W. Bush appointees, as well as Breyer, Thomas, and Sotomayor. In dissent, Kagan (joined by Ginsburg) argued that simple vehicular flight shouldn’t be considered a violent felony. Scalia, on the other hand, argues that the “violent felony” clause should be struck down as unconstitutionally vague, with sentence enchantments applied only to crimes specifically identified by Congress.

One thing that makes Scalia better than your generic Alito-style contemporary reactionary is that he takes the principle that ambiguities in the criminal law should be interpreted against the state seriously, and his dissent makes several points I agree with in general:

What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach…


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 Consti-tution 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.

The problem Scalia describes is real, but in this particular case I’m not sure that the primary fault lies with Congress. “Violent felonies” isn’t a terribly ambiguous term, and creating a laundry list could create problems based on states classifying similar crimes differently. The real problem, I think, arises from the Supreme Court (as it did in this case) straining to classify non-violent felonies as violent felonies. If the Court simply did what it should and hold against the state where the status of a conviction as a violent felony is unclear, I think the statute would be perfectly workable. Since the Court seems unwilling to do so, however, Scalia may be right that the only thing left to do is to send the issue make to Congress and force them to be clearer about what constitutes a violent felony.

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