CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 12, 2008

Supreme Court Argument Report: Jack the Ripper in His Armchair

The Supreme Court on Monday considered a case involving whether a defendant's failure to report for confinement after conviction constitutes a "violent crime" under the Armed Career Criminal Act. The justices weighed arguments concerning whether failure to report is an aggressive or a passive act, and contemplated hypotheticals involving a defendant shirking jail time in order to relax in his armchair or to create holiday memories with his family.

Deondery Chambers, who pleaded guilty to being a felon in possession of a firearm, had prior convictions for drug distribution and for robbery and battery. He challenged whether his conviction under an Illinois escape law for failure to report for confinement was a violent felony that supplied the third predicate conviction for enhancement of his sentence under the ACCA.

Attorney Robert N. Hochman, representing Chambers, told the justices that the government had made a "critical error" in "equating breakout, prison escape, with failure to report. They are entirely different."

Failure to report "presents neither a serious potential risk of injury to others nor involves violent and aggressive conduct," Hochman said.

Assistant to the Solicitor General Matthew D. Roberts argued, however, that failure to report carries the risk of violent confrontation between the defendant and police officers who may come to bring the defendant into custody. He compared it to burglary -- an enumerated offense under the ACCA -- calling it "purposeful, violent, and aggressive in the same way as burglary."

Justice David Souter challenged Roberts on this point, stating that "the crime that we are concerned with here is still essentially a passive crime. [The defendant] just doesn't show up."

Roberts responded that "deliberately failing to comply with your legal duty to report to prison ... is not doing nothing, as petitioner says. It's not purely passive. It is a criminal act." [Mark Godsey]

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