Begin the Begay (-Based Arguments, That Is): SCOTUS Holds Felony DUI Not an ACCA "Violent Felony"

Begay v. United States, No. 06-11543 (U.S. Apr. 16, 2008)

Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected.

At issue in Begay was whether felony DUI is a "violent felony" for purposes of the Armed Career Criminal Act's 15-year mandatory minimum sentence. More specifically, does felony DUI qualify under 18 U.S.C. § 924(e)(2)(B)(ii), which includes an offense that "is burglary, arson, or extortion, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (emphasis added).

The answer: No. The Court concluded that, in order to give effect to every word in the definition, the "otherwise clause" must be interpreted to include only offenses that "are roughly similar, in kind as well as in degree of risk posed, to the" listed offenses. And how do we know if that rough similarity exists?

The listed crimes all typically involve purposeful, "violent," and "aggressive" conduct. . . . That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and agressive manner are "potentially more dangerous when firearms are involved." And such crimes are "characteristic of the armed career criminal, the eponym of the statute."

(internal cites purposefully, perhaps aggressively, but definitely not violently, omitted). Measured against that standard, felony DUI doesn't make the cut:

By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.

(Id.) This construction is consistent with the ACCA's overall purpose, which is to address the special danger present when certain types of particularly dangerous felons possess guns:

In this respect---namely, a prior crime's relevance to the possibility of future danger with a gun---crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness towards risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.

As Justice Scalia points out in his opinion concurring in the judgment, the majority's construction of the statute "excludes a slew of crimes from the scope of the residual clause[.]" So there's plenty of room to start litigating this issue with renewed vigor, and to attack prior decisions finding various crimes to fall within the residual clause.

By the way, why didn't Justice Scalia join the majority? As in James, he complains that the majority's test provides insufficient guidance to lower courts. Instead, he would apply the test he proposed in James: the risk of physical injury presented by the offense in question must be equivalent to or greater than the risk posed by the least serious enumerated offense, which is burglary. Justice Scalia then concludes that drunk driving doesn't present that level of risk. Although DUI is dangerous and kills thousands of people a year, it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year and those statistics aren't available. For some crimes, the severity of the risk is obvious, but that's not the case with DUI. And because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and the enhancement cannot be applied.

Justice Alito, joined by Justices Souter and Thomas, dissented. He makes a number of interesting points, but his argument boils down to this: DUI is itself quite dangerous and easily fits within the literal language of the otherwise clause, and repeat DUI-ers who possess guns pose a danger just as serious as that posed by repeat burglars, arsonists, and so forth.

Finally, congrats to New Mexico AFPD Margaret Katze, lead counsel for Mr. Begay, as well as to all the others who helped on this very big win.