Justice Scalia's Pro-Defendant Tilt?
(At least if DUI's involved; death penalty not included.)
Justice Antonin Scalia is often wrongly viewed as being a knee-jerk conservative. If you survey his entire jurisprudence, you'll notice many cases in which he sided with the criminal defendant over law enforcement. His view of the Sixth Amendment, as articulated in the line of sentencing cases starting with Apprendi and moving forward, is generally pro-defendant.
And just the other day, in Begay v. United States (PDF), Justice Scalia once again sided with the criminal. Why? An observant ATL reader offers this speculation:
In Begay v. U.S., the Court decided drunk driving was not a "violent felony" under the Armed Career Criminal Act. Nino concurred, saying the following: "because I cannot say that drunk driving clearly poses [a serious risk of injury to another], the rule of lenity brings me to concur in the judgment of the Court."Weird for two reasons. First, does Nino really think a DUI is not dangerous? And second, how often do we hear Nino invoke the rule of lenity?
But maybe not so weird after all. Recall Nino's daughter, Ann Banaszewski, getting busted for DUI, which was all the more shocking because she had her kids in the car. Hmm.
In other recent Nino news, a different reader reports:
Did you read Scalia's concurrence in Baze v. Rees? He pretty much gave Stevens a rhetorical beatdown; guess Nino won't be getting an invite to Stevens' birthday party this weekend....
Here's one part we especially liked (citations omitted):
The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” It is Justice Stevens’ experience that reigns over all.
Or maybe Justice Kennedy's. Ain't judicial review grand?
(That's just one excerpt; the opinion as a whole is quite the benchslap. Check it out in full over here.)
Court: Drunk driving not a violent felony [SCOTUSblog]
Begay v. United States [SCOTUSblog (PDF)]
(37) Comments
Scalia's a crank who ought to be embarrassed by his over-the-top rhetoric. This "opinion" and his vitriolic screed in *Lawrence v. Texas* stain the pages of the U.S. Reporter.
The defendant's son, Hugh Begay, killed more than a dozen people before finishing elementary school and now shares a cell with Aswipe (that's "Oz-wee-pay") Jones and Tom Bagina.
"I cannot say that drunk driving clearly poses [a serious risk of injury to another]"
are you f-ing kidding me? did i miss something? was the rest of the quote "if you're driving your snowmobile through northern Alaska?"
And what happens if Stevens "evolving standards of decency" evolve in a different direction from mine? We fight until the one with the bigger club wins? The alternative to the rule of law is the rule of force, and we get closer to it every time someone who thinks like Stevens prevails.
Justice Scalia invokes the rule of lenity more often than other other justice combined. Saying you're surprised he invoked the rule of lenity is like saying you're surprised to hear that Brittney ended up drunk with her skirt hiked up to her head over New Years weekend.
2:42, DUI does not equal "violent felony"; especially not under the Armed Career Criminal Act .
once again, Scalia adheres to his cherished strict constructionism and judicial restraint only when it happens to agree with his policy purpose. if he were intellectually honest, i could respect him. what an embarassment.
A brilliant con law professor once said, "If your theory of constitutional law never makes you reach results you don't like, you haven't worked hard enough on developing your theory." I wonder when Scalia last reached a result he didn't like?
And anyone who thinks Scalia is unusual among justices in getting a result he likes hasn't read enough SCOTUS opinions.
2:42 - Many DWI's result in serious injury. Many do not. There are many factors that go into whether a drunk driver poses a serious risk of injury to another. Because of the wide array of factors Nino "cannot say that drunk driving CLEARLY poses [a serious risk of injury to another]."
Take for instance the person pulled over for going to slow on a moped at 4am who blows a .08. Not the truck driver swerving on the beltway who blows a .19.
Maybe there has been a lot of talk about this, and I just missed it, but I really hate this new format for ATL. I used to be a multiple-times-a-day reader. Know I barely visit the site. Something about the new format makes it so much less accessible.
Am I alone on this? Why did the format change? I'll still check in every few days; it's just not as exciting as it used to be.
What purpose is served by further embarassing Scalia's daughter? She's not a public figure. Lat, you're getting even scummier.
3:12 - Yes, but other justices aren't 1) as disrespectful and dismissive of other opinions as Scalia is, and 2) don't pretend as overtly to be free from bias. I'm not a liberal, and don't have major issues with his criminal procedure opinions, but his opinion in right to die cases that the state is allowed to FORCE you to take drugs that keep you alive against your will has left me entirely contemptuous of most of his jurispridence. About the only thing he's consistently done that I think is admirable is stand up to freedom of speech rights. I don't know where his reputation as a legal genius comes from. I think O'Connor's opinions, just as an example, made tons more sense, and were much better written, than Scalia's. Hell, even Rehnquist's did.
"Weird for two reasons.... And second, how often do we hear Nino invoke the rule of lenity?"
I'm sorry, I simply cannot take anything this person says seriously. Justice Scalia *frequently* invokes the rule of lenity. In general, he decries substantive canons, but he has repeatedly gone out of his way to argue that the rule of lenity is different because it is validated by hundreds of years of jurisprudence. He relies on it in cases more than any other Justice, he mentions it specifically in nearly every speech or article, and he defends its use in a book outlining his own interpretative methodology.
Perhaps some readers should familiarize themselves with the facts before they write this drivel.
"I wonder when Scalia last reached a result he didn't like?"
Umm, just off the top of my head, how about BMW v. Gore, Muscarello v. United States, and Texas v. Johnson? Are you really this blinded by ideology?
Uh, wrong.
A quick WL search for "au(scalia) & lenity" in the "sct" database yielded five results. Two are civil cases, one Scalia rejects the rule of lenity, and one Scalia did not actually author. That leaves Clark v. Martinez, 543 U.S. 371 (2005).
There are 15 concurrences in which he cites lenity and 24 dissents, but I'm not parsing them to figure out which ones support its use.
"I think O'Connor's opinions, just as an example, made tons more sense, and were much better written, than Scalia's."
Please, please, please... tell me, 3:25, that you have no formal legal training. Not that I'm partial to Scalia, but O'Connor had no clue how to articulate a functional legal test.
3:56, in between classes, please ask westlaw for more lessons, so they can teach you that "au" only captures majority opinions, not dissents and concurrences.
4:07, please get a tutor who teachs you "literacy," so that you can read the "whole thing" rather than "a part."
Let me reprint, because I'm sure your ability to read extends only to 2 paragraphs: "There are 15 concurrences in which he cites lenity and 24 dissents, but I'm not parsing them to figure out which ones support its use."
Okay 3:56, wow us with your logic. According to you, Scalia cites the rule of lenity in 39 cases where he differs from the majority. This shows that Scalia uses the rule of lenity when other Justices do not. Yet you think it is proof that he uses it less. Awesome reasoning.
Of course you are not "parsing them to figure out which ones support its use." Why would you? If you educated yourself, those pesky facts might get in the way of your "Scalia = bad" meme.
Things are clearer with the full quote:
The statute in this case defines “violent felony” in part
as “any crime punishable by imprisonment for a term
exceeding one year . . . that . . . 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.” 18 U. S. C. §924(e)(2)(B)(ii). Contrary to the Court, I conclude that the residual clause unambiguously encompasses all crimes that present a serious risk of injury to another. But because I cannot say that drunk driving clearly poses such a risk (within the meaning of the statute), the rule of lenity brings me to concur in the judgment of the Court.
By the way, while we are all so quick to attack a judge's motives, has anyone bothered to read the case and decide whether Scalia was even wrong? If he was not, what is all the arguing about?
Scalia found that drunk driving is not a violent felony under the "Armed Career Criminal Act." Yes, drunk driving is dangerous and should be penalized. But are any of you seriously arguing that it is the kind of conduct proscribed by the Act in question? Is this a joke?
I'd bet my bonus that if Scalia had held differently, the very same people would be on here complaining that he is right wing and too harsh toward criminal defendants.
4:50, it's not as straightforward as that. Here's another quote: "Under my interpretation of §924(e), I must answer one question: Does drunk driving pose at least as serious a risk of physical injury to another as burglary? From the evidence presented by the Government, I cannot conclude so."
Read the opinion here: http://www.scotusblog.com/wp/wp-content/uploads/2008/04/06-11543.pdf
Scalia has always been generally pro-defendant. I would expect the mainstream edia to be very surprised at this, but not any lawyers or law students that have actually read more than 3 conlaw criminal cases from the last 20 years.
Scalia has been a stauch opponent of lenity for over 30 years. He only invokes the meme to support his conservative agenda.
The statute is written poorly, and Scalia is an idiot. I will give him credit for the fact that the shitty wording of the statute probably metled his brain.
He is stupid because he uses another enumerated crime - burglary - to assess the comparative risk of physical injury. I bet as many people die from drunk drivers as do from burglars. Also, how often are people seriously physically injured from extortion???
The statute is poorly written because they need another modifyer in there. Like frequent or something, because without that modifyer, hundreds of activities would qualify. To say that drunk driving does not "otherwise
involves conduct that presents a serious potential risk of physical injury to another" is to make an ass out of yourself. Thousands of people die every year at the hands of drunk drivers. I think there is a slight risk there.
I don't think that is what the drafters intended, but again it is poorly worded.
Yeah, he's definitely an idiot. Gooosssshhhhhh!
Scalia is a hack.
"I bet as many people die from drunk drivers as do from burglars."
Well, the rate, rather than the raw numbers, would be more relevant. Anyway, I think Alito's dissent had the better of this case, and rightly took Scalia to task for his weird theory of this statute.
"He is stupid because he uses another enumerated crime - burglary - to assess the comparative risk of physical injury." - 5:42
Ejusdem Generis. Look it up.
2:50, way to regurgitate the majority opinion as your argument. very compelling.
after reading it, i agree that Alito had it right. while i don't like his politics, i continue to be impressed by the quality of his reasoning. he's what scalia imagines himself to be.
"I bet as many people die from drunk drivers as do from burglars."
"Well, the rate, rather than the raw numbers, would be more relevant."
No it is not. The question is what constitutes a "violent felony" within the meaning of the statute. The "numbers" have nothing to do with that question.
Scalia is correct to rule that any crime that falls under the statute should be of the same level of risk as the least risky of the crimes listed. Since he also very astutely breaks down the poor math being used to claim that drunk drivers kill more people than burglary (not the point: there are far more incidents of drunk driving than burglary and therefore the same level of "risk of injury" would require many more drunk driving injuries, especially when the law specifically excludes all self-inflicted injuries from the risk calculus) he clearly writes a better opinion than the majority, which creates yet another test since the one they sloppily rendered last year was inapplicable to any case that wasn't either enumerated or so close to an enumerated crime that it made no difference.
Scalia also makes it clear that he believes the law does apply to negligent crimes (which the majority opinion seems to preclude) including drunk driving homicides (which, as he snarkily mentions, have a "100% risk of injury").
Seriously, Lat, it is time to amend your initial post. An "observant" ATL reader would not have made such laughable misstatements about the Justice's use of the rule of lenity. There is nothing "observant" about saying something that is clearly incorrect.
Still waiting for 3:56 to discuss the 39 cases where Scalia invokes the rule of lenity ...
Still waiting, 3:56 ...
STILL waiting.