(re)defining violent felonies

A while back, while blogging about the juvenile justice resolution, I tried to find a solid definition of the phrase "violent felonies," looking to the Armed Career Criminal Act of 1984.

A recent Supreme Court ruling hinges on an ambiguity I hadn't explored: section 924, (B) (ii):

(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[emphasis added]

In a 6-3 decision, SCOTUS found that fleeing from police in a vehicle constitutes a violent felony under this definition.

Mr. Sykes’s flight was dangerous, Justice Anthony M. Kennedy wrote for the majority. “Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence and struck the rear of a house,” Justice Kennedy wrote.

But, Justice Kennedy went on, the issue was not whether Mr. Sykes’s actual conduct had been violent. Rather, it was whether the crime he had been convicted of was as a general matter a crime of violence.

As a matter of both common experience and statistics, Justice Kennedy wrote, the answer was yes. Fleeing from the police in a car, he wrote, “is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase.”

Scalia penned the strongest dissent:

Justice Antonin Scalia, writing only for himself, issued a vigorous dissent. He said the provision of the federal law under review (“involves conduct that presents a serious potential risk of physical injury to another”) was a hopelessly vague Congressional “drafting failure” and that “today’s tutti-frutti opinion” produces “a fourth ad hoc judgment that will sow further confusion.”

The phrase "otherwise involves conduct that presents a serious potential risk of physical injury to another" may be broad, but the context--as part of a "crime" or "act of juvenile delinquency"--limits the scope, which is probably why six justices lined up in favor of the broad reading.

As an aside, what is a "potential risk?" Isn't any risk inherently "potential?" Lawyer friends, help me out here.



[via Glenn Reynolds]