June 10, 2011 4:30PM

‘Repetition of Constitutional Error Does Not Produce Constitutional Truth’

While we await the big Supreme Court decisions that will come down in the next few weeks, some of the smaller decisions can provide interesting moments. In Sykes v. United States, issued Thursday, the Court interprets the meaning of the “residual clause” of the Armed Career Criminal Act (ACCA). This is the fourth time in four years that the Court has tried to clarify the ACCA, specifically the terms “violent felony” and “serious” drug crime. As Justice Scalia sarcastically says in his scathing dissent, “We try to include an ACCA residual‐​clause case in about every second or third volume of the United States Reports.” This time, the issue was whether Indiana’s crime of “felony vehicle flight” qualifies as a “violent felony.”

The ACCA shouldn’t even exist. Like most federal criminal laws, the ACCA is blatantly unconstitutional. But when Members of Congress want to appear “tough on crime” in order to please constituents, they’re unlikely to let a little thing like the Constitution stand in the way.

While federal criminal statutes are likely here to stay, we can still demand that the laws be clear. Vague laws are more than just annoying, they’re unconstitutional. Unfortunately, a majority of the Court will uphold intentionally vague drafting that gives inadequate notice to citizens as to what is prohibited. Cato Adjunct Scholar Tim Sandefur has more to say about vague laws here.

Last term, in Skilling v. United States, the Court held that a long‐​abused statute was unconstitutionally vague. Cato filed an amicus brief on behalf of Jeff Skilling, the former Enron CEO, that highlighted the abuses that result from vague prohibitions such as “depriving someone of honest services.” But, as Cato Adjunct Scholar Harvey Silverglate (who has written an entire book on the problems with vague statutes) and Monica Shah explained in the last edition of the Cato Supreme Court Review, the Court did not go nearly far enough in Skilling. Rather than disposing entirely of a vague statute, they rewrote it, holding that the term “honest services” is limited to “core” cases of bribery and kickbacks. Justice Scalia concurred in Skilling, agreeing with the majority that Skilling’s conviction should be reversed. Scalia wrote separately, however, to criticize the majority’s attempt to salvage the statute by re‐​writing it.

In Sykes, Scalia dissented, continuing his principled opposition to vague criminal statutes. He wrote: “Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness…Repetition of constitutional error does not produce constitutional truth.”

Of course, with Justice Scalia, he always has more choice lines:

The residual‐​clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.

That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach, and that permits, indeed invites, arbitrary enforcement. The Court’s ever‐​evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.

In his conclusion, Justice Scalia has some excellent observations about the relationship between vague laws and the increasing problem of the over‐​criminalization of federal law:

We face a Congress that puts forth an ever‐​increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave‐​the‐​details‐​to‐​be‐​sorted‐​out‐​by‐​the‐​courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes.

As for Scalia’s amazing quote that is the title of this post, can anyone figure out how to turn it into a personalized license plate?