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."
"Well, you know, you may precisely be doing nothing," Souter responded. "If I say, you know, it's Monday morning at 9 o'clock, I'm supposed to report to prison, and I'm going to stay home, my purpose is to stay put in my armchair. That's purposeful conduct and it's about as passive as you can get."
Several justices asked Roberts whether statistics show how many failure-to-report situations lead to violent encounters between defendants and the police. Chief Justice John Roberts Jr. also asked whether there were any "statistics about how serious the police are" about picking up those who fail to report for confinement.
"I don't think you really need the statistics, Your Honor," Assistant to the Solicitor General Roberts told the chief justice. "I think ... it's common sense that the police are going to make vigorous efforts to recapture people who fail to show up to prison the way they are supposed to."
Justice Antonin Scalia pointed out that Chambers was serving his sentence only on the weekends. "[I]t's not common sense that the person who has been guilty of a crime so gentlemanly that they only made him report to prison on the weekends would confront the policeman with violence when he comes."
"This guy doesn't sound to me like Jack the Ripper. He really doesn't," Scalia said.
In his rebuttal, Hochman returned to the idea of failure to report as a passive crime. In the present case, Hochman said, "[t]here is nothing about concealment. There is nothing about hiding. There is nothing about seeking to escape from a police officer who comes to bring [Chambers] back. He just didn't go."
Though he noted that the record didn't explain why Chambers failed to report for four consecutive weekends, the attorney engaged in some speculation based on the season.
"You know, it was the November to December period. It's the holiday period of time for people when they, obviously, for a variety of reasons might prefer to spend time with their families," Hochman said.
"Statistics show that the number of robberies increases during the holiday season," Chief Justice Roberts pointed out. The audience in the courtroom laughed.
"There is no indication, Mr. Chief Justice, that any further robberies were committed [by Chambers] during that period," Hochman said.
"Well, there is no indication he meant to spend time with his family over the holidays," the chief justice retorted.
The case is Chambers v. United States.Laurel Newby is a senior editor with Law.com.