The following argument recap was written by David Jang of the Stanford Supreme Court Litigation Clinic. His preview of this case can be found here.
James v. U.S. (No. 05-9264), argued Tuesday morning, had the Justices and lawyers on both sides of the case struggling with linguistic conundrums such as whether a “potential risk†is a “potential potentialâ€. The issue in James is whether a Florida conviction for attempted burglary qualifies as a “violent felony†under the federal Armed Career Criminal Act. The Act defines as a “violent felony†a crime that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another†or “(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 two prior cases, Taylor v. United States and Shepard v. United States, the Court held that in order for a state conviction to qualify as a violent felony under the ACCA, courts must take a categorical approach: look to the elements that must be proved to a jury in order to convict, and ask whether those elements necessarily present a “serious potential risk†of physical harm. James argues that attempted burglary presents no such risk. This is especially so in Florida, James contends, because Florida’s definition of burglary encompasses intrusions upon curtilage, or enclosed grounds surrounding a dwelling. Craig L. Crawford of Florida’s Federal Public Defender, argued for petitioner James. Jonathan L. Marcus, assistant to the Solicitor General, argued on behalf of the United States.
Justice Alito began questioning of Mr. Crawford by asking whether a would-be burglar scaling a ladder in an attempt to enter a window would involve the same risk as a completed burglary. This opened a line of questioning from several Justices aimed at determining the line at which a “potential risk of physical injury†arises during a burglary. In the course of that inquiry, Justice Scalia revealed that he would read the “otherwise†clause as limited to crimes involving a similar risk of physical force as the enumerated crimes preceding it. The threshold of harm need only be equal to the risk of physical harm posed by extortion, which Justice Scalia called the “least dangerous†of the enumerated crimes.
The statute can accommodate alternate readings, according to Justice Stevens. Under one reading, the enumerated crimes are examples of crimes that characteristically involve harm to others. Under another reading, Congress specified crimes like burglary and extortion as predicate offenses under the ACCA even though they do not characteristically involve such risks. Justice Stevens then asked Mr. Crawford which construction he preferred. Justice Scalia intervened, claiming that the latter reading would only be available if the word “or†stood in for “otherwiseâ€. “Otherwise†indicates that the previously named crimes must share the common characteristic of involving physical risk.
Justice Scalia poked at another textual oddity in the statute by asking, “What’s a potential risk, by the way . . . a potential potential? I mean, every risk is potential, isn’t it?†Justice Souter confessed that he initially thought this language was “just redundantâ€, but then surmised it may indicate a congressional intent to encompass attempts. Mr. Crawford countered by pointing to the House’s failure in 1984 to pass a proposal that would have included both completed and attempted burglary within the ACCA’s enumeration of “violent feloniesâ€.
Justices Scalia and Breyer each sought, in their own way, to depart from a purely abstract analysis of a crime’s essential elements to determine which crimes should qualify as violent felonies. Justice Breyer advocated an empirical approach: legal academics could, for example, gather statistics and compare the number of burglary convictions that involved physical harm to the number of attempted burglary convictions that involved similar harms. If the numbers are similar, attempted burglary should be treated like burglary under the ACCA. A statistical analysis could also lead the Court to “simply follow a reasonable interpretation of what the sentencing commission did,†since the commission is in the best institutional position to compile the relevant data.
Justice Scalia, meanwhile, suggested a course that would “save ourselves from sending out legions of law professors to do studies.†Justice Scalia pointed out that the holdings in Taylor and Shepard did not refer explicitly to the residual clause. The Court could presumably retain the categorical rule for enumerated offenses, but apply a case-by-case factual inquiry to cases in the residual category. Mr. Crawford objected that this would render any categorical analysis irrelevant, since a fact-based inquiry could sweep up any crime into the definition of “violent felonyâ€, even if it failed the categorical rule.
Mr. Crawford did not yield in his defense of a strict categorical rule. When the Chief Justice asked whether attempted arson or attempted use of explosives presented a serious potential risk of physical harm, Mr. Crawford replied that they would not, unless an element of the statutory offense presented a serious potential risk of physical injury—“which, at least in Florida, [is] not the case.â€
Justice Souter posed a troubling hypothetical at the outset of Mr. Marcus’s presentation. Homing in on the inclusion of curtilage under Florida law, the Justice asked whether the state would consider it an attempted burglary to approach a fence with the intent to steal an apple from a tree in a yard on the other side. When Mr. Marcus conceded that it would, Justice Souter observed that this gave the United States a “tough row to hoe†under a categorical test.
The Chief Justice lent a strong hand to the government’s task. According to the Chief Justice, there may be an even greater risk of physical harm in cases of attempted burglary than in cases of completed burglary. Attempted burglaries by definition fail, and generally fail because something interrupts the burglar. An interruption by a homeowner, for example, is what imbues attempts with “their own independent risk of physical injury.†Justice Alito helped highlight another plausible theme in Mr. Marcus’s presentation: that a defendant’s intent to commit burglary should carry more weight than whatever acts he actually carried out. “So in other words,†the junior justice remarked, “in measuring the risk, you should consider not just what this particular defendant succeeded in accomplishing, but what the defendant was attempting to accomplish?â€
Mr. Marcus faced the greatest difficulty in persuading the Justices that the categorical rule of Taylor and Shepard would draw a Florida conviction for attempted burglary into the realm of “violent felonyâ€, even if the attempt involved no more than a breach of curtilage. Mr. Marcus attempted to cut off this concern by urging the Court to trust the Florida Supreme Court’s narrow construction of curtilage and its statement that it would not construe the term to produce absurd, harsh or unreasonable results. Justices Souter and Kennedy hinted that one solution to the over-inclusiveness problem would be to utilize language in Taylor and Shepard allowing a court to consider certain court records, and not just the elements of the crime, where state statutes departed from the “generic†elements of a crime. Mr. Marcus declined this invitation, maintaining that even an attempt to burgle curtilage qualifies as a violent felony. Justice Ginsburg appeared uncomfortable with this argument, reiterating that it would convert cases involving no risk of harm to anybody into violent felonies. Mr. Marcus countered that under a categorical approach, there will always be a contrary hypothetical—even in cases of completed burglary.
James found no strong allies at the Court on Tuesday. It clearly troubles some of the justices that the categorical test would expose defendants to heightened sentences under the ACCA even when the circumstances of a predicate offense involved no actual risk of physical harm. But it seems possible that the Court will smooth over this concern by taking advantage of the modified categorical test or by deciding that an attempt to create a risk of harm is, under the ACCA, as culpable as actually creating a risk of harm.
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