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Statutory Interpretation

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Nearly lost in the hubbub over Baze v. Rees were two federal sentencing decisions handed down by the high court this week. For those who practice mainly in the state courts, the results are less important than the statutory interpretation principles applied. These are likely to have persuasive value in state cases.

Rule of Lenity: In Burgess v. United States, the Court addressed when a prior is a "felony drug offense." It is a drug offense punishable by more than a year, even if the state that imposed it has an oddball rule where a defendant can get more than a year but it's still a misdemeanor. Why? Because Congress said so in a specific definition statute, and the specific controls more general language elsewhere. No surprise there. At the end of the opinion, the Court rejects the "rule of lenity" argument, saying the rule is simply inapplicable if the statute is not ambiguous. There are lots of other cites for that point, but a recent, unanimous Supreme Court decision by Justice Ginsburg is nice to have in the toolbox for it.

Watch those example lists: Begay v. United States is particularly important for those involved in drafting legislation, but also for those who must interpret it. Is DUI a "violent" offense for the purpose of the three-strikes provision of the Armed Career Criminal Act? On the word "violent" alone, I wouldn't have thought so. Is it "conduct that presents a serious potential risk of physical injury to another"? No doubt about it. Given that Congress defined "violent" as including any conduct of that type, that would seem to settle the matter. Justices Alito, Souter, and Thomas think so.

But hold on, says Justice Breyer for the majority. That general language is preceded by the specific offenses of "burglary, arson, or extortion, [or a crime that] involves use of explosives." So the general language refers only to crimes within its description that are similar in nature to those listed. "The listed crimes all typically involve purposeful, 'violent,' and 'aggressive' conduct." And, no, Justice Breyer doesn't resort to the rule of lenity. Justice Scalia would, but the majority specifically rejects the usage.

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Breyer gets it right, I think. There doesn't seem to be any reason for the particular example crimes in clause (ii) if the catch-all was going to pick up drunk driving. So the rule about surplusage seems pretty apt here. Also, I think that Congress' use of "violent" matters too. It is a risky thing to talk about the regular meaning of a defined term, but here I think it's particularly probative. While it may be a little bit of a stretch to call "burglary" a violent crime, the reality is that burglary can easily lead to intentional violent crimes against people. Drunk driving seems a whole different animal.

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