Legal Commentary

Contrary to what some of you might think, I do not spend all of my blogging time here justifying my prejudices in philosophy and literature. This term has produced a bumper crop of criminal law cases raising deep or downright bizarre problems in construing federal statutes, about which I have posted (here and here). For those of you who like the drama of jousting Justices, Begay v. United States, handed down on April 19th, is the best of the lot.

Begay has all the elements of a classic textualist-versus-purposivist conflict that we have gradually come to expect from the Rehnquist and Roberts Courts: There?s an opinion by Breyer (for the majority) noting the absurdities of relying on the strict letter of the law, an opinion (concurring) by Scalia filled with cranky phrase-making (e.g., denouncing the purposivists? ?Scrabble-like approach? to statutory interpretation), and a truly goofy application of a federal criminal law resulting from textualism.

In the ongoing battle between Breyer and Scalia, Breyer chalks up a victory for the purposivist team. And this writer cannot help but think that Begay is one more data point supporting the theory that, when textualism really makes a difference in a particular case, it leads to a preposterous result ? a sort of human sacrifice to the Grim God, Rechtsstaat ? that even hardcore textualists have a hard time approving.

Begay involves the Armed Career Criminals Act (ACCA), 18 U.S.C. section 924(e)(1), which imposes a mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or a violent felony. The ACCA defines a ?violent felony? to be a felony that either ?(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.? Section 924(e)(2)(B)(i), (ii).

Begay had a bad record of drunk driving in New Mexico ? 12 DUIs, which repeat offenses qualified as felonies under New Mexico law. Begay also had illegally possessed a firearm, threatening his aunt with an unloaded rifle in order to extort money from her. (It did not work, by the way). Does he qualify for the 15-year minimum because drunk driving was a ?violent felony??

As a strictly clause-bound textual matter, drunk driving seems obviously to be a violent felony. DUI offenses intuitively involves just as much of a serious risk of physical injury as, say burglary: The body count on the highways, after all, numbers in the thousands. Accordingly, Justices Alito, Souter, and Thomas all dissented from Breyer?s majority opinion on this basis, declaring that ?the Court's interpretation simply cannot be reconciled with the statutory text.?

The difficulty with this eminently sound textual position is that applying the ACCA to a drunk driver cannot easily be reconciled with any intelligible goal of the statute. If the point of punishing gun-toting felons is to keep weapons out of the hands of ?career criminals? who are likely to misuse them, then one might as well impose the 15-year minimum on insider traders or graffiti artists as drunks. But if this goal of deterring gun offenses by the violent is not the point of ACCA, then the statute seems pointless. Why else single out crimes involving use of physical force, burglary, arson, crimes involving the use of explosives, or extortion, unless one was worried about gun possession by willfully violent offenders who deliberately waged war on the homes and persons of their fellow citizens? Surely, the predicate offenses triggering the "Armed Career Criminal Act" ought to have something to do with the risks associated with weapons.

Thus, Justice Breyer decided to apply a species of ejusdem generis to the residual clause, reasoning that the list of preceding crimes defined a principle limiting the general category of crimes that ?otherwise involve[] conduct that presents a serious potential risk of physical injury to another.? That principle, according to Breyer, required such crimes to involve ?purposeful, violent, and aggressive conduct.? Negligent conduct like drunk driving did not present a serious risk of physical injury, because it did not involve any aggressive or purposefully violent behavior.

Justice Scalia concurred separately to protest what he took to be the re-writing of the statute with a ?made-for-the-case improvisation.? Instead, Scalia urged that the Court stick with the ?risk of physical harm? principle but spare Begay by invoking the principle of lenity: There just was not sufficient proof that drunk driving led to a ?serious? risk of physical injury.

Did Justice Scalia, dean of textualists, blink? It is difficult to credit the notion that the body count from drunk driving is somehow smaller than the body count from botched burglaries. Moreover, this hardly seems like the rule-bound approach on which Scalia prides himself. Should the Court seek out statistical studies about whether vandalism, graffiti, the numbers racket, prostitution, gambling, and any number of other offenses are statistically associated with a higher rate of injury than burglary? Managers who illegally scrimp on worker safety at factories cause injuries. So do corporations that illegally store toxic waste at leaky landfills. Do they fall within ACCA?

One suspects that Scalia simply could not bring himself to make the necessary sacrifice to the Great Baal of Textualism. But he preferred to escape this sacrifice by invoking the squishy, ad hoc safety valve of lenity rather than admit that the spirit of the statute (as expressed in its ballot title and its apparent purpose) should triumph over the letter.

But what makes the principle of lenity more acceptable to a hardcore textualist than, say, reliance on a measure?s title or surmises about its general purpose? Lenity, after all, is hardly a well-defined limit on judicial discretion. When Scalia accuses the majority of a "made-for-the-case improvisation," is he projecting?

Textualism, in short, maybe in trouble at SCOTUS. And a good thing, too, I am inclined to think.