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Failure to report to jail is not violent crime

By: dmc-admin//January 19, 2009//

Failure to report to jail is not violent crime

By: dmc-admin//January 19, 2009//

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A mere failure to report to jail is not a “violent felony” under the Armed Career Criminal Act (ACCA), according to the nation’s highest court.

The U.S. Supreme Court on Jan. 13 unanimously held that the 15-year minimum for defendants convicted of felon in possession of a firearm is not triggered by a prior conviction for failure to report to custody, in contrast to escape from custody.

However, even though the opinion reverses a Seventh Circuit precedent, intervening precedent from the Seventh Circuit had already gutted that precedent.

The case arose when Deondery Chambers pleaded guilty to felon in possession of a firearm in Illinois federal court. A defendant with three prior violent felonies or serious drug offenses is a career criminal subject to the 15-year minimum.

Chambers had a prior conviction in Illinois state court for failure to report to jail. Whether that conviction counted as a violent felony determined whether the mandatory minimum applied.

Both the district court and the Seventh Circuit held that the conviction is a violent felony.

U.S. v. Chambers, 473 F.3d 724 (7th Cir. 2007).

But the Supreme Court granted review and reversed, in an opinion by Justice Stephen G. Breyer. The court concluded that the framework it adopted last year in Begay v. U.S, 128 S.Ct. 1581 (2008), required that failure to report not be counted as a violent felony under the ACCA.

In Begay, the court held that a felony conviction for operating a motor vehicle while intoxicated is not a “violent felony” for two reasons: it was not similar to the ACCA’s list of enumerated violent felonies — burglary, arson, extortion, and crimes involving the use of explosives; and it did not involve purposeful, violent, and aggressive conduct.

Applying Begay, the Supreme Court held that failure to report to jail was not a violent felony for the same reasons.

Justice Breyer wrote, “The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.

“Conceptually 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,” Breyer added.

To support its holding, the court extensively cited a November 2008 report by the U.S. Sentencing Commission that found that, of 160 instances of failure to report in 2006 and 2007, none involved violence during either the commission of the offense or recapture.

Justice Samuel A. Alito wrote a concurrence, joined by Justice Clarence H. Thomas, agreeing with the result, but criticizing the approach adopted in Begay as divorced from the statutory text.

“Today’s decision, for example, turns on little more than a statistical analysis of a research report prepared by the United States Sentencing Commission,” Alito wrote.

Case analysis

As noted, the court’s opinion reverses Seventh Circuit precedent, but that precedent had already been questioned by the appeals court itself since Begay was decided.

On Sept. 9, 2008, the Seventh Circuit decided U.S. v. Templeton, No. 07-2949, which involved a defendant who had a prior conviction for failing to report to a Wisconsin jail in violation of Wis. Stat. 946.425.

Citing Begay (and that the Supreme Court had also accepted review in Chambers), the court acknowledged, “Begay … shows that this court’s approach in Chambers and earlier cases was incomplete, because we did not ask whether escapes and failures to return are sufficiently similar to the listed offenses.”

The court concluded in Templeton, “A walkaway is not a crime of violence under Begay.

Nor is a simple failure to report to custody.”

So, the Supreme Court’s opinion affirms what the Seventh Circuit had already concluded — its own opinion in this case was incorrect.

Nevertheless, that doesn’t render the opinion superfluous, according to Marquette University Law Professor Michael O’Hear.

Chambers differs significantly from Begay, O’Hear said, because of the court’s reliance on statistical data that failure to report is not likely to result in violence.

In Begay, no such data was available. While there are statistics on drunken driving arrests, and drunken driving accidents, no one knows how many people drive drunk every year without incident.

In contrast, here, there was good data available how often violence results when people are arrested after failing to report to custody. “Where there is such data, courts must evaluate the risk to determine whether the offense is a crime of violence,” O’Hear said.

However, O’Hear acknowledged the case could be an outlier, just because the data available in this case will frequently not be available, in which case only Begay will provide guidance for lower courts.

O’Hear also noted that the majority seemed to take the exact approach that Justice Antonin Scalia advocated in Begay, but which the majority rejected — that the relevant issue is whether the crime has a level of dangerousness equal to or greater than burglary.

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