Punishing Hypothetical (Rather Than Actual) Conduct

Doug Berman justifiably criticizes a Seventh Circuit opinion today that classified “failing to report to a county jail” as a “crime of violence” for Federal Sentencing Guidelines purposes. It  makes the difference for this particular defendant of being subjected to the mandatory 15 year minimum sentence under the armed career criminal statute.

I have discussed before here and here the Kafkaesque reality that, in the federal system, prior state offenses like evasive driving can qualify as violent crimes to trigger severe sentence enhancements. Today's new Kafka chapter in this criminal history story comes from the Seventh Circuit: a split panel decided in US v. Golden, No. 06-1362 (7th Cir. Oct. 25, 2006) (available here), that a defendant's prior "failure to report to county jail in violation of the Wisconsin Criminal Code" qualifies as a "violent felony" to trigger a mandatory minimum sentence of 15 years' imprisonment under the armed criminal career statute, 18 U.S.C. § 924(e).

Well, what does the statute itself say? 18 U.S.C. § 924(e)(2)(B) defines a “violent felony” as one that:

(1)   has an element the use, attempted use, or threatened use of physical force against the person of another, or

(2)   is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

So how does this court come to the determination that failing to report to a county jail constitutes a “violent felony” for guideline purposes? It quotes from U.S. v. Franklin, 302 F.3d 722 at 733, “the benchmark should be the possibility of violent confrontation, not whether one can postulate (a) nonconfrontational hypothetical scenario”.

The decision spells out that since recapture of the defendant may involve the use of force or danger that this qualifies as a crime of violence. I side with the dissenter who pointed out that a probation violation that led to a warrant, and therefore the possibility of a violent confrontation, could qualify under this analysis as well. Do we really need to go so far as to punish people for what they might have done but didn’t? (There was never any evidence in the case that the defendant’s recapture involved any violence at all.)

Unfortunately, the time for this lament has probably long since passed, but I believe that proper statutory construction demands that the courts take into account the other four types of crimes listed, in determining whether a state offense is a violent felony. After all, how similar is “failure to report to jail” to burglary or arson or extortion or crimes involving explosives?

Interpreting statutes should also require looking at legislative intent. Any evidence that Congress believed this law would lead to this absurd result?

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cat - May 23, 2008 4:51 PM

my friend is being extrodited to houston for a failure to appear and a class a felony, i was just wondering what kind of time he might be facing

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