Failure to Report for Service of Sentence Is Not an ACCA "Violent Felony"

Chambers v. United States, No. 06-11206 (U.S. Jan. 13, 2009)

Addressing a circuit split, the Supreme Court held yesterday, per Justice Breyer, that the Illinois offense of failing to report for penal confinement is not a "violent felony" under the ACCA. As in Begay, the question was whether the offense "otherwise involves conduct that presents a serious potential risk of physical injury to another," the so-called "residual clause" of the "violent felony" definition.

Building on James and Begay, the Court explained that,

[c]onceptually speaking, the crime amounts to a form of inaction, a far cry from the "purposeful, 'violent,' and 'aggressive' conduct" potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion. While an offender to fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. To the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct.

(cites failed to report for service in block quote).

In so holding, the Court rejected as "beside the point" the Government's argument "that a failure to report reveals the offender's special, strong aversion to penal custody." Instead, "[t]he question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a 'serious potential risk of physical injury.'"

And on that point, we've got data. A Sentencing Commission analysis of the application of the escape guidline revealed that, out of 160 failures to report that were sentenced in 2006 and 2007, none involved violence and only 5 involved armed defendants. "The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury." (The Government managed to dig up three reported cases from a period of 30 years in which individuals who failed to report shot at pursuing officers. The Court viewed that as consistent with the Commission data, given the larger data set.)

Justice Alito, joined by Justice Thomas, wrote a separate opinion concurring in the judgment only. Although willing to accept Begay as a matter of stare decisis (and because of the special force the doctrine carries in the statutory construction arena), they still think that decision is irreconcilable with the text of the residual clause. Alito also opines that the Taylor/Shepard categorical approach has made the "ACCA's residual clause . . . nearly impossible to apply consistently[,]" and suggests that Congress should ditch the residual clause in favor of a longer laundry list of enumerated offenses. Moreover, Alito apparently also favors jettisoning the Taylor/Shepard categorical approach not just for the residual clause, but for enumerated offenses as well. And that makes one wonder why Thomas joined Alito's opinion in its entirety, given that Thomas expressed the opinion in Shepard that going beyond the categorical approach to consider the actual facts of prior offenses would violate the constitution. Or perhaps that means I'm mistaken about Alito's position on the categorical approach.