James V. United States (2007) - Dissenting Opinions

Dissenting Opinions

Justice Scalia faulted the Court's opinion for failing to "provide guidance concrete enough to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day". How should these judges know whether burglary, arson, or extortion is the most analogous to the crime of which the defendant had been previously convicted? What if none of these three was most analogous, as would be the case for a prior conviction for driving under the influence? Such vagueness could not be tolerated, Scalia argued.

Scalia argued that a better way to determine whether a prior conviction qualified as a "crime of violence" under the residual provision would be to see whether it posed at least as much risk of injury as the enumerated crime that posed the least such risk. That crime could not be arson or the explosives crime, and so Scalia was left with burglary or extortion. In Taylor the Court ruled that "burglary" in the ACCA's definition of "violent felony" had a generic meaning—unlawful or unprivileged entry into or remaining in a building or structure with the intent to commit a crime. Scalia posited a generic definition of extortion: obtaining something of value from another with his consent induced by the wrongful use or threatened use of force. As between the two, burglary posed less of an inherent risk of harm because it did not, by definition, in its generic sense, involve the use of force. "The burglar may be prepared to flee at the first sign of human presence", after all.

Having concluded that burglary was the least dangerous of the four crimes, Scalia contended that attempted burglary was less risky than completed burglary. By definition, in a completed burglary, the burglar has entered the building, where the closer proximity of prowler and victim increases the likelihood that injury will result from any confrontation between the two. "The so-called 'confrontation' the Court envisions between a would-be burglar and a third party while the burglar is still outside the home is likely to consist of nothing more than the occupant's yelling 'Who's there?' from his window, and the burglar's running away". The danger posed by burglary arises from the fact that the burglar has entered the building, and thus attempted burglary is categorically less dangerous than completed burglary.

Justice Thomas reiterated his view that the Sixth Amendment required a jury to determine the facts of the prior convictions that supported the ACCA sentence beyond a reasonable doubt.