Whether a defendant’s failure to report for confinement creates a serious potential risk of physical injury to another person under the Armed Career Criminals Act, 18 U.S.C. § 924 (e) such that it can be considered a violent felony.
The Seventh Circuit in United States v. Chambers, 473 F.3d 724, 725 (7th Cir. 2007) held that failure to report to a penal institution constitutes a violent crime under the Armed Career Criminals Act. Petitioner Deondery Chambers pleaded guilty to being a felon in possession of a firearm and was sentenced to 188 months in jail under the Armed Career Criminals Act because of his prior conviction for failing to report on schedule to a penal institution. Without the additional punishment mandated by the Armed Career Criminals Act, Chambers’ sentencing range would have been 130 to 162 months. The U.S. Supreme Court considers in this case whether or not a defendant’s failure to report for confinement involves conduct that presents a serious potential risk of physical injury to another such that it constitutes a violent felony under the Armed Career Criminals Act.
Questions as Framed for the Court by the Parties
Whether a defendant’s failure to report for confinement “involves conduct that presents a serious potential risk of physical injury to another” such that a conviction for escape based on that failure to report is a “violent felony” within the meaning of the Armed Career Criminals Act, 18 U.S. C. § 924 (e).
Petitioner Deondery Chambers pled guilty to being a felon in possession of a firearm in the United States District Court for the Southern District of Illinois. The District Court judge found that Chambers had previously committed three crimes of violence and sentenced him to 188 months in jail under the Armed Career Criminals Act (“ACCA”). Chambers failed to report on schedule to a penal institution four times following a conviction for drug possession, robbery, and aggravated battery. Under Illinois law, both “intentionally escaping from a penal institution” and “knowingly fail[ing] to report to a penal institution” constitute felonious escape, which is considered a crime of violence in Illinois. Chambers appealed from the judgment of the District Court, arguing that his previous conviction for failing to report to a penal institution does not constitute a violent felony under the ACCA.
The ACCA provides in pertinent part that whoever commits a crime of violence and has three prior convictions for a violent felony shall be imprisoned for at least fifteen years. Under the ACCA, a violent felony includes any crime “punishable by imprisonment for a term exceeding one year” that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Chambers argued that his crime of failure to report to a penal institution does not involve conduct presenting a serious potential risk of physical injury to anyone, and thus should not be considered an ACCA predicate offense. Without the additional punishment imposed by the ACCA, the sentencing range for Chambers would have been 130 to 162 months.
In ruling on Chambers’ appeal, the Seventh Circuit noted, in an opinion authored by Judge Posner, that two of its recent decisions, United States v. Golden, 466 F.3d 612 (7th Cir. 2006)and United States v. Bryant, 310 F.3d 550 (7th Cir. 2002), were in accord with the District Court’s judgment. Those cases held “that any violation of the statute  is a crime of violence for purposes of the Act [ACCA].” All of the other courts of appeal, excluding the D.C. Circuit and the Ninth Circuit, were in accord with the rule of law laid down in Golden and Bryant. The D.C. Circuit reserved judgment on the issue and the Ninth Circuit “ruled that a peaceful failure to return, followed by the defendant’s turning himself in rather than being recaptured, is not a crime of violence.”
In its opinion, the Seventh Circuit adhered to the precedents laid down in Golden and Bryant, but not without expressing strong reservations about the possibilities of injustice under this rule. Judge Posner threw doubt on the circuit’s prior decisions, stating that “it is an embarrassment to the law when judges base decisions of consequence on conjectures,” in this case, about the potential for injury as the result of failure to report to a penal institution. He ended his opinion with a strong appeal for a qualified study “comparing the frequency of violence in escapes from custody to the frequency of violence in failures to report or return,” in an effort to discover whether failures to report or return to a penal institute are properly categorized as crimes of violence.
The U.S. Supreme Court granted certiorari to decide whether the failure to report for confinement to a penal institution constitutes a “serious potential risk of physical injury” to others and thus is a violent felony under the ACCA.
The Armed Career Criminal Act (“ACCA”) defines acts that qualify as violent felonies in two clauses. A violent felony is a crime punishable by more than one year in prison 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, use of explosives, or conduct that otherwise presents a serious risk of physical injury to another.” It is under the “or” sub-clause in clause (ii) that the defendant, Chambers, is accused of committing a violent felony as a result of his failure to report to a penal institution.
Chambers argues that his failure to report should not be considered a violent felony because it is a crime of inaction. Unlike the offenses enumerated in the ACCA, which involve activities that are “inherently dangerous,” the crime in this case, according to Chambers, “involves doing nothing” and thus is not “inherently dangerous in any sense.” To accentuate this point, Chambers notes that in Begay v. United States,128 S.Ct. 1581 (2008),the Court distinguished felony DUI from other crimes of violence under the statute, treating it as a strict liability crime that does not require “purposeful conduct.” A crime of inaction, such as this one, argues Chambers, requires even less than the purposeful conduct necessary in Begay, and instead involves only a “failure to act.”
The United States answers that deliberately failing to fulfill a legal duty can be a purposeful, violent and aggressive act. Unlike the DUI in Begay, the offense at issue here is argued to be a knowing and purposeful act, because it involves a deliberate decision by the offender to fail to report, which is his legal duty.
Risk of Violence
Chambers claims that the enumerated crimes contained in clause (ii) are offenses that are either inherently dangerous to others, such as those involving the use of explosives or arson, or are committed with a “conscious awareness of the dangerous circumstances being created” by the act, as is the case with burglary or extortion. Failure to report, he claims, is not similar in either respect. It does not directly expose people to inherent danger, nor is it committed with a conscious awareness of the risk of violent confrontation.
In arguing the similarity between failure to report and the enumerated offenses, the United States cites the Supreme Court’s decision in James v. United States, 430 F. 3d 1150 (2007). There, it was determined that the risk presented by attempted burglary “is comparable in degree to the risk posed by the enumerated offense of burglary” in terms of the risk of violent confrontation that exists that may cause physical injury to others.The United States argues that failure-to-report escape also presents a risk of violent confrontation and physical injury to others. This is because by not reporting at the assigned time, an offender is causing law enforcement to go out, find him, and recapture him, which creates a high degree of risk for violent confrontation.
Extent of the Offense
Chambers argues that the proper way to analyze conduct for whether or not it is a violent felony under the ACCA is to use the Court’s “categorical approach” as described in Begay. Essentially, he argues, the conduct being analyzed for its purposeful, violent, and aggressive quality must be limited to the “conduct essential to commit the offense.” Chambers notes that if courts were allowed to look beyond the act itself and towards a potential “violent confrontation arising out of a later attempt to arrest an offender” then by extension, all offenses could be violent felonies under the ACCA’s residual sub-clause. Chambers states that “every crime involves some risk of confrontation between law enforcement and the offender during any subsequent effort to arrest the offender.”
The United States contends that there is no basis for Chambers’ interpretation of the ACCA’s text because often the injuries caused in the enumerated crimes of the Act occur only after the offense itself is complete. For example, the injury to others as a result of the use of explosives or arson would only materialize after the acts of the crimes themselves had been completed. This concept is further demonstrated, according to the United States, by the enumerated crimes of burglary or extortion. Extortion involves making a threat, so the promised injury will occur only after the threat has been made and the crime completed. The same holds true for burglary, where all that is necessary to complete the crime is the unlawful entering of a building with the intention to commit a crime; any violent confrontation would occur only after this has been completed. Furthermore, the United States notes that there is no text in the ACCA that requires the resulting injury to occur “in the course of committing the offense”; instead, it must only create the “potential risk of physical injury.”
Chambers argues that another ground for reversal of the Seventh Circuit’s decision is that failure to report is not a property crime. According to Chambers, subclause (i) covers harms to persons, while subclause (ii), and the residual “or” subclause found within it, cover only crimes that target property. According to Chambers, any other reading would render clause (i) “superfluous” because the residual subclause in (ii) would cover anything that could potentially be covered by (i). Chambers notes that “[i]t is a well settled principle of statutory interpretation that words in a statute should not be read to render other provisions mere surplusage.” Chambers believes that the Act’s drafting history supports his view that clause (ii) refers exclusively to property crimes, and that the residual subclause was not meant to expand the scope of (ii) beyond that of “dangerous property crimes.”
The United States argues that this conclusion is wrong, and that the enumerated crimes claimed by Chambers to be exclusively property crimes are in fact not. The use of explosives, it argues, does not necessarily have to involve damage to property because they could be used in an open field to injure people and not property. Extortion does not necessarily have to target property either, since it could involve a favor from a public official or a confession in a judicial proceeding. However, the United States claims that even while accepting that the enumerated crimes are all property crimes, accepting the limitation proposed by Chambers would exclude offenses like a jail-break escape, inciting a riot, or using a chemical weapon. This, the United States argues, would produce absurd results, as these are clearly purposeful, violent offenses that Congress intended ACCA to reach. The United States concludes that Congress’ purpose in enacting the residual subclause was to create a subset for a broad category of crimes that presented a risk of physical injury due to violence, not for property crimes.
Precedent and Interpretation
Chambers further argues that by limiting the interpretation of the residual subclause exclusively to property crimes, the determination of whether a future offense applies as a violent felony will be a “straightforward” exercise. This would limit the amount of qualitative judgment necessary, and eliminate the need for quantitative data concerning degree of risk, which might not always be present. Chambers urges the Court to take this approach so that lower courts will not be invited to use differing quantitative approaches to identify whether an offense is a violent felony. Chambers further asserts that allowing “judges to impose punishment based on their uninformed, standardless sense of degree of risk” would be a violation of separation of powers since making these determinations should be the job of the legislature.
The United States, on the other hand, argues that Chambers has provided no evidence that Congress ever intended for statistical analysis to replace “judicial judgment based on experience and common sense” in determining what is or is not a violent felony under the residual sub-clause. The United States further disagrees with Chambers’ assertion that allowing judges to interpret the statute would create a constitutional problem, and cites to James, which explicitly allows judges “to make evaluations that are ‘sometimes difficult.’”
A major change that could arise from this case is the expansion of what constitutes a violent felony under the Armed Career Criminals Act (“ACCA”). In Begay, a case that also involved the scope of the ACCA, the National Association of Federal Defenders argued that allowing the courts to determine whether a crime constitutes a violent felony based on speculation about the physical risk of an act gives the court too much power in determining whether to tack on a mandatory minimum sentence of fifteen years. Similarly, Jennifer Chow argues that “shoehorning” a crime like drunk driving, which is admittedly very dangerous, as a violent felony unnecessarily broadens the scope of the ACCA to include numerous negligent crimes that were not intended by Congress to receive the heightened punishment of the ACCA. Because failure to report to a penal institution is generally viewed as a non-violent crime, like the drunk driving at issue in Begay,the same danger of the harsh penalties of the ACCA encompassing virtually any felony apply to this case as well.
On the other hand, if the Supreme Court rules in favor of Chambers, the scope of who is considered a violent, career criminal could be narrowed, resulting in less jail time for felons and potentially allowing them to commit more violent crimes against society. Congress passed the ACCA in 1984 believing that a large number of the violent crimes in the United States were carried out by a small number of repeat offenders. Consistent with this logic, David Levy argues that one of the best ways to eliminate fear and reduce crime is to impose harsher penalties on convicted felons who have violated federal firearms laws. Levy argues that criminals, motivated by a cost–benefit analysis, are willing to commit more crimes and face prosecution because they are unlikely to face harsh punishment. Therefore, he argues, imposing harsher penalties on those who violate federal firearms laws and are more likely to commit violent crimes again will help to reduce crime overall.
This case may, as a result of the Seventh Circuit’s request in its decision below, result in an in-depth study of whether failing to report to a penal institution is properly categorized as a violent crime. The U.S. Supreme Court may hold as a general rule that studies indicating that a particular crime is of a violent nature are necessary to place that crime under the reach of the ACCA. The majority in United States v. Chambersconsidered an inquiry into whether failing to report to a penal institution is a violent crime necessary in order to rule against precedent and find in favor of Chambers.
The U.S. Supreme Court’s decision has the potential to create a slippery slope allowing virtually any felony to be classified as violent under the ACCA or, in the opposite extreme, to place more violent criminals back on the street should it adopt a limiting construction of what constitutes a violent act. It could also simply result in a new approach to the classification of ACCA predicates, if the Court demands statistics on the violent nature of failure to report to a penal institution and other crimes.
The decision in this case will determine if the scope of the Armed Career Criminals Act covers the offense of failure to report to a penal institution as a violent felony. The question to be decided is whether the failure to report involves conduct that presents a serious potential risk of physical injury to another. Chambers argues that because failure to report is a crime of inaction that does not require purposeful conduct, it does not create a risk of injury to another. Furthermore, he believes that Congress intended to limit the Act to crimes that cause direct harm to another or are property offenses, and that failure to report is neither. The United States, on the other hand, believes that the risk created by the failure to report is purposeful conduct, and that the property crimes designation is erroneous. Either way, the decision will determine who is considered a violent criminal and greatly affect the sentencing penalties imposed upon them.