By Brent Tunis

On January 12, 2011, the Supreme Court will hear arguments for Sykes v. United States. In doing so, the Court will be deciding whether fleeing the police in a car constitutes a “violent felony” under the Armed Career Criminal Act (ACCA). The Circuits are currently split on this issue, with the Eleventh and Fourth Circuits holding that this is not a violent felony, while the Seventh Circuit held that Sykes had indeed committed a violent felony by fleeing the police in his car (the Fifth, Sixth, and Tenth Circuits also agree that this is a violent felony). This is a particularly important issue for the Court to decide not only because Sykes will be facing a statutory minimum of fifteen years in jail if his fleeing is found to be a violent felony, but also because the legal standard for categorizing a felony under the ACCA is unclear and fraught with problems.

The Court previously held, in Begay v. United States, 128 S. Ct. 1581 (2008), that the test for whether or not a crime constitutes a “violent felony” under the ACCA, requires a court to employ a two-step analysis. In the second step, a court must decide if the “typical predicate crime” is similar in kind to the ACCA’s enumerated crimes of “burglary, arson, extortion, and the use of explosives,” meaning that it involves “the same kind of ‘purposeful, violent and aggressive’ behavior that shows ‘an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.’ ” United States v. Sykes, 598 F.3d 334, 336 (7th Cir. 2010). This test is extremely open ended because it is ultimately left up to judges to decide not if the criminal or the specific crime, but if the type of crime indicates that the offender has an increased likelihood to shoot someone.

To make matters more difficult, the judge is then supposed to compare this “typical predicate crime” with the abovementioned violent felonies and somehow determine if they are similarly “purposeful, violent and aggressive.” But I ask, how can any judge, or for that matter any person, decide such a question without looking to the specific facts of the crime at hand?

Fleeing from the police in a car is a crime that can encompass a wide array of violent, as well as non-violent conduct. An offender may flee from the police recklessly, at high speeds, going through red lights at busy intersections; or an offender may not speed at all and carefully drive down an empty street in a rural, scarcely populated area. Surely the former may be similar to the violent felonies listed above, but it seems inaccurate and unjust to claim that the latter violation is comparable in terms of both its aggression and violence. Indeed, this difficulty in defining the broad category of conduct involved with fleeing the police is why the Circuits are currently split.

Ultimately, without a factual inquiry into the circumstances surrounding the alleged “violent felony,” judges will be left to their mere opinions and biases in deciding if a given crime is typically as “purposeful, violent and aggressive” as another crime typically is. I urge the Court to reconsider this standard because there are bound to be future disagreements among the Circuits in trying to categorize and compare other expansively defined crimes.