If you think the Supreme Court's recent decision in Plata v. Schwarzenegger implied a court that was growing "soft on crime," today's ruling in Sykes v. United States should persuade you otherwise. The decision focused on whether or not Marcus Sykes committed a "violent felony" under Indiana law when he fled from the police, in part because driving cars is inherently dangerous. If he did, then he would be subject to a harsher penalty under the Armed Career Criminal Act.
In a rather unorthodox divide on the court, Justice Antonin Scalia joined Ruth Bader Ginsburg and Elena Kagan in dissenting, while Democratic appointees Stephen Breyer and Sonia Sotomayor joined the conservative majority in affirming that Sykes really did commit a violent felony when he fled from the police.
The majority argued that fleeing from the police in a car fits the description of a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another," under the ACCA. I think Scalia actually has the right of it when he argues that the law is so vague as to be unconstitutional because it does not “'give a person of ordinarily intelligence fair notice' of its reach." This is one of those weird moments where that faint little civil libertarian voice deep in Scalia's brain actually asserts itself and has something to say:
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.
Given the tone of his dissent in Plata, Scalia has some rather harsh words for politicians and their approach to crime:
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particu-lar. 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 Constitu-tion. 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.
Kagan, in her dissent, points out that there are circumstances under which trying to escape from police in a car might constitute a violent felony but that they involve someone deliberately acting recklessly, pointing out that the Indiana law in question actually makes such distinctions. I'd just add that it's interesting given the initial predictions that Kagan would end up as the liberal statist on the court, that she ended up siding with the minority on this instead of Sotomayor, who, given her work for civil-rights organizations, you might assume would be dissenting in Kagan's place. Probably not if you were actually paying attention during her nomination process, though.
