Instant Analysis Sykes v. United States

June 9th, 2011

In Sykes v. United States, Justice Kennedy writing for Chief Justice Roberts and Justices Breyer, Alito, and Sotomayor, held that “Felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA [Armed Career Criminal Act],” afirming the 7th Circuit. Justice Scalia wrote a solo dissent. Justice Kagan dissented, joined by Justice Ginsburg.

Very interesting lineup, which mirrors the lineup in Michigan v. Bryant, another criminal procedure case. In Bryant, Sotomayor wrote for Roberts, Kennedy, Breyer, and Alito. Thomas Concurred in Judgment. Scalia and Ginsburg dissented. Kagan recused.

I will update this page as I make my way through the opinion.

Justice Kennedy’s Majority Opinion

The Majority Opinion is rather short, only 14 pages. The total opinion, is 53 pages. The lineup is also unusual, uniting the law-and-order Justices: Kennedy, Robets, Breyer, Alito, and Sotomayor. This mirrors the lineup in Michigan v. Bryant. I think we see a new “Law and Order” majority.

The Court found that fleeing from the police in a car the “determination to elude capture makes a lack of concern for the safety of others an inherent part of the offense. Even if he drives without going full speed or the wrong way, he creates the possibility that police will, in a legitimate and
lawful manner, exceed or almost match his speed or use force to bring him within their custody. His indifference to these collateral consequences has violent—even lethal—potential for others.”

Specifically, simply fleeing the police, even below the speed limit, is dangerous.

When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capturemakes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to eludecapture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match hisspeed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent—even lethal—potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others. This similarity is a begin.

Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture

Kennedy cites a number of statistics to explain whether vehicular escape is likely to be dangerous.

Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony. See Chambers, 555 U. S., at 129 (explaining that statistical evidence sometimes “helps provide a conclusive . . . answer” concerning the risks that crimes present). As JUSTICE THOMAS explains, chase-related crashes kill more than 100 non suspects every year. See post, at 4–5. Injury rates are much higher. Studies show that between 18% and 41% of chases involve crashes, which always carry a risk of injury, and that between 4% and 17% of all chases end in injury. See ibid.
A 2008 International Association of Chiefs of Police (IACP) study examined 7,737 police pursuits reported by56 agencies in 30 States during 2001–2007. C. Lum & G. Fachner, Police Pursuits in an Age of Innovation and Reform 54. Those pursuits, the study found, resulted in313 injuries to police and bystanders, a rate of slightly over 4 injuries to these non suspects per 100 pursuits. Id.,

at 57. Given that police may be least likely to pursue suspects where the dangers to bystanders are greatest— i.e., when flights occur at extraordinarily high speeds— it is possible that risks associated with vehicle flight are even higher.
Those risks may outstrip the dangers of at least two offenses enumerated in 18 U. S. C. §924(e)(2)(B)(ii). According to a study by the Department of Justice, approximately 3.7 million burglaries occurred on average each year in the United States between 2003 and 2007. Bureau of Justice Statistics, S. Catalano, Victimization during Household Burglary 1 (Sept. 2010). Those burglaries resulted in an annual average of approximately 118,000injuries, or 3.2 injuries for every 100 burglaries. Id., at 9–
10. That risk level is 20% lower than that which the IACP found for vehicle pursuits.
The U. S. Fire Administration (USFA) maintains the world’s largest data bank on fires. It secures participation from over one-third of U. S. fire departments. It reports an estimated 38,400 arsons in 2008. Those fires resulted in an estimated 1,255 injuries, or 3.3 injuries per 100 arsons. USFA, Methodology Used in the Development of the Topical Fire Research Series, downloads/pdf/tfrs/methodology.pdf (all Internet materials as visited June 3, 2011, and available in Clerk of Court’s case file); USFA, Nonresidential Building Intentional Fire Trends (Dec. 2010),; USFA, Residential Building Causes,; USFA Residential and Nonresidential Fire Estimate Summaries, 2003–2009, index.shtm. That risk level is about 20% lower than that reported by the IACP for vehicle flight.

Kennedy rejected Sykes’ argument that “ACCA predicate crimes [need] to be purposeful, violent, and aggressive in ways that vehicle flight is not.”

The phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.

The phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.

Finally, Justice Kennedy noted that “Congress framed ACCA in general and qualitative, rather than encyclopedic, terms.”

It could have defined violent felonies by compiling a list of specific covered offenses. Under the principle that all are deemed to know the law, every armed felon would then be assumed to know which of his prior felonies could serve to increase his sentence. Given that ACCA “requires judges to make sometimes difficult evaluations of the risks posed by different offenses,” this approach could simplify adjudications for judges in some cases. James, 550 U. S., at 210,
n. 6.
Congress instead stated a normative principle. The residual clause imposes enhanced punishment for unlawful possession of the firearm when the relevant prior offenses involved a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving use of explosives. The provision instructs potential recidivists regarding the applicable sentencing regime if they again transgress. It states an intelligible principle and provides guidance that allows a person to “conform his or her conduct to the law.”

Scalia finds no such “intelligible principle” in this case.

Justice Thomas’ Opinion Concurring in Judgment

Justice Thomas differs from the majority opinion, and finds that Justice Kennedy “errs by implying that the “purposeful, violent, and aggressive” test may still apply to offenses “akin to strict liability, negligence, and recklessness crimes.”

The error in imposing that test, which does not appear in ACCA, is well catalogued. See, e.g., Begay, 553 U. S., at 150–152 (SCALIA, J., concurring in judgment); id., at 158– 159 (ALITO, J., dissenting); ante, at 11 (finding “no precise textual link” in the statute). I agree with JUSTICES SCALIA and KAGAN that the majority’s partial retreat from Begay only further muddies ACCA’s residual clause. Post, at 1 (SCALIA, J., dissenting); post, at 1, n. 1 (KAGAN, J., dissenting). The only question here is whether, in the ordinary case, using a vehicle to knowingly flee from the police after being ordered to stop “involves conduct that presents a serious potential risk of physical injury to another.”§924(e)(2)(B)(ii). I believe that it does. Therefore I concur in the judgment.

Justice Thomas also relies on statistics to show the “potential risk” of intentional vehicular flight.

Common experience and statistical evidence confirm the “potential risk” of intentional vehicular flight. Cf. Chambers v. United States, 555 U. S. 122, 129 (2009) (statistical evidence, though not always necessary, “strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury”). Data from the National Highway Traffic Safety Administration shows that approximately 100 police officers, pedestrians, and occupants of other cars are killed each year in chase related crashes. National Center for Statistics & Analysis, Fatalities in Motor Vehicle Traffic Crashes Involving Police in Pursuit 37–56 (2010) (reporting 1,269 such deaths between 2000 and 2009).

The number injured must be much higher. Many thousands of police chases occur every year. In California and Pennsylvania, which collect statewide pursuit data, police were involved in a combined total of more than 8,700 chases in 2007 alone. See Pennsylvania State Police Bureau of Research & Development, Police Pursuits 2007Annual Report; Report to the Legislature, Senate Bill 719, California Police Pursuits (March 2008); see also Schultz, Hudak, & Alpert, Emergency Driving and Pursuits, FBI Law Enforcement Bulletin, Apr. 2009, pp. 1, 4 (surveying more than 2,100 police officers and finding an average of just over one pursuit per officer each year). And up to 41% of all chases involve a crash, which always carries some risk of injury. Wells & Falcone, Research on Police Pursuits: Advantages of Multiple Data Collection Strategies,20 Policing: Int’l J. Police Strategies & Management 729, 740 (1997) (citing nine studies, each showing a crash ratebetween 18% and 41%). Indeed, studies show that 4% to 17% of all chases actually cause injury. Ibid.; see also C. Lum & G. Fachner, Police Pursuits in an Age of Innovation and Reform 57 (2008) (finding that 23.5% of flights involve a crash, and 9% of flights cause injury).
An International Association of Chiefs of Police study of 7,737 pursuits across 30 States found 900 injuries, of which 313 were to police or bystanders. Ibid. As the majority observes, that injury rate is just over 4 injuries per 100 chases, excluding injuries to the perpetrator. Ante, at 8. By comparison, the injury rate for burglary and arson is around 3 injuries per 100 crimes, or less. Ante, at 9; see also Harrimon, supra, at 537 (citing similar arson statistics, showing between 1 and 3 injuries per 100fires, apparently including injuries to perpetrators). Statistics support what logic suggests: The ordinary case of intentional vehicular flight is risky, indeed, more so than some offenses listed in ACCA.

These statistical risks of intentional flight merely reinforce common sense and real world experience. See, e.g.,Carroll & Woomer, Family Killed in Visalia Crash After Man Flees From Sheriff’s Deputy, Visalia Times-Delta,Apr. 2–3, 2011, p. 1A; Broward & Butler, Fleeing Car Hits Another; 5 People Injured, Florida Times-Union, Mar. 15,2011, p. C2; Klopott, Crash During Police Chase Kills Father of Four, Washington Examiner, Nov. 22, 2010, p. 4;Fenton, Woman Killed During Pursuit Identified, Baltimore Sun, July 27, 2010, p. 4A (reporting that a woman was killed when a fleeing suspect crashed into her car); Rein & Hohmann, Crashes, Injuries Left in Wake of Pr. George’s-Baltimore Chase, Washington Post, Nov. 22, 2009, p. C3 (noting injuries to two police officers and an innocent motorist).

Thomas’ approach differs from Kagan’s. He is not willing to indulge in Sykes’ hypothesizing about a non-violent vehicular escape.

The fact that Sykes can imagine a nonrisky way to violate §3(b)(1)(A) does not disprove that intentional vehicular flight is dangerous “in the ordinary case.” See James, 550 U. S., at 208. It is also possible to imagine committing burglary—an enumerated offense—under circumstances that pose virtually no risk of physical injury. See id., at 207 (hypothesizing a “break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors”)

Justice Thomas in conclusion relies on the “elements, statistics, common experience, and cases” to “conclude that in the ordinary case, Indiana’s crime of intentional vehicular flight, §3(b)(1)(A), “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). The crime is therefore a violent felony under ACCA.”

Justice Scalia’s Dissent

This opinion is vintage Nino. He finds the residual clause in the ACCA vague, and would strike it down as void for vagueness.

He opens up by noting that the Court has tried times to clarify “for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act from other crimes.”

We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. [Four generations is enough?] We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.

Scalia reads the majority opinion as saying “or initially seem[ing] to say, that an offense qualifies as a violent felony if its elements, in the typical case, create a degree of risk “‘comparable to that posed by its closest analog among the enumerated offenses.’” This is he standard from James. Rejecting the “closest analog test,” Scalia finds, “the problem with applying the James standard to the present case is that the elements of vehicular flight under Indiana law are not analogous to any of the four enumerated offenses.”

Scalia, channeling his inner Little Richard, proceeds to consider the next precedent in the ACCA trilogy, Begay.

But what about the test that determined the outcome in our second case in this “series”—the “purposeful, violent, and aggressive” test of Begay? Fear not. That incompatible variation has been neither overlooked nor renounced in today’s tutti-frutti opinion.

Scalia next chides the Court’s reliance on statistics.

Today’sopinion then outdoes Chambers in the volume of statistics that it spews forth—statistics compiled by the International Association of Chiefs of Police concerning injuries attributable to police pursuits, ante, at 8; statistics from the Department of Justice concerning injuries attributable to burglaries, ante, at 9; statistics from the U. S. Fire Administration concerning injuries attributable to fires, ibid., and (by reference to JUSTICE THOMAS’s concurrence) statistics from the National Center for Statistics & Analysis, the Pennsylvania State Police Bureau of Research, the FBI Law Enforcement Bulletin and several articles published elsewhere concerning injuries attributable to police pursuits, ante, at 8 (citing ante, at 4–5 (THOMAS, J., concurring in judgment)).

Unsurprisingly, Scalia rejects this approach to fact-finding inappropriate, particularly because the Court does not note why it selected one data set over another.

Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery. See Fed. Rule Crim. Proc. 16(a)(1)(F), (G); Fed. Rules Evid.702–703, 705. An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all. The Court does not examine, for example, whether the police-pursuit data on which it relies is a representative sample of all vehicular flights. The data may be skewed towards the rare and riskier forms of flight. See post, at 6, n. 4 (KAGAN, J., dissenting). We also have no way of knowing how many injuries reported in that data would have occurred even absent pursuit, by a driver who was driving recklessly even before the police gave chase. Similar questions undermine confidence in the burglary and arson data the Court cites. For example, the Court relies on a U. S. Fire Administration dataset to conclude that 3.3 injuries occur per 100 arsons. See ante, at 9. But a 2001 report from the same U. S. Fire Administration suggests that roughly 1 injury occurs per 100 arsons. See Arson in the United States, Vol. 1 Topical Fire Research Series, No. 8, pp. 1–2 (rev. Dec. 2001), online at (as visited May 27, 2011, and available in Clerk of Court’s case file). The Court does not reveal why it chose one dataset over another. In sum, our statistical analysis in ACCA cases is untested judicial fact finding masquerading as statutory interpretation. Most of the statistics on which the Court relies today come from government funded studies, and did not make an appearance in this litigation until the Government’s merits brief to this Court. See Brief for Petitioner 17; see also Chambers, supra, at 128–129 (demonstrating that the same was true in that case).

Further, the use of the statistics contributes to the vagueness.

But the more fundamental problem with the Court’s use of statistics is that, far from eliminating the vagueness of the residual clause, it increases the vagueness. Vagueness, of course, must be measured ex ante—before the Court gives definitive meaning to a statutory provision, not after. Nothing is vague once the Court decrees precisely what it means. And is it seriously to be expected that the average citizen would be familiar with the sundry statistical studies showing (if they are to be believed) that this-or-that crime is more likely to lead to physical injury than what sundry statistical studies (if they are to be believed) show to be the case for burglary, arson, extortion, or use of explosives? To ask the question is to answer it. A few words, then, about unconstitutional vagueness.

Scalia notes that today’s opinion has even further tortured the meaning of the residual clause, but that does not by itself violate the Constitution.

Today’s opinion, which adds to the “closest analog” test (James) the “purposeful, violent, and aggressive” test (Begay), and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute’s application clear and predictable. And all of them together—or even the risky-as-the-least-risky test alone, I am now convinced—never will. 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.

Yikes. So the text isn’t clear, and the Court failed at making it clear.

Scalia laments that the Court has upheld certain statutes that are “hopeless vague” but ACCA is different.

We have, I recognize, upheld hopelessly vague criminal statutes in the past—indeed, in the recent past. See, e.g., Skilling v. United States, 561 U. S. ___ (2010). That is regrettable. What sets ACCA apart from those statutes—and what confirms its incurable vagueness—is our repeated inability to craft a principled test out of the statutory text. We have demonstrated by our opinions that the clause is too vague to yield “an intelligible principle,” ante, at 13, each attempt to ignore that reality producing a new regime that is less predictable and more arbitrary than the last. ACCA’s residual clause fails to speak with the clarity that criminal proscriptions require.

Scalia assumes that perhaps other opinions upheld vague statutes. “Of course even if the cited statutes were comparable, repetition of constitutional error does not produce consti- tutional truth.”

Scalia concludes his dissent by recognizing the negative feedback loop that occurs when the Court’s “indulgence of imprecisions that violate the Constitution encourages imprecisions [by Congress] that violate the Constitution.”

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 nitty-gritty. 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. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

Justice Kagan’s Dissent

Kagan would take a more nuanced approach, and distinguish between fleeing the police in a violent manner, and fleeing the police in a non-violent manner. Her opening paragraph is wonderful prose.

Vehicular flight comes in different varieties, and so too the statutes that criminalize the conduct. A person may attempt to outrun police officers by driving recklessly and at high speed, in disregard of traffic laws and with disdain for others’ safety. Or a person may fail to heed an officer’s command to pull over, but otherwise drive in a lawful manner, perhaps just trying to find a better place to stop. In Indiana, as in most States, both of these individuals are lawbreakers. But in Indiana, again as in most States, the law takes account of the differences between them, by distinguishing simple from aggravated forms of vehicular flight. Unlike the Court, I would attend to these distinctions when deciding which of Indiana’s several vehicular flight crimes count as “violent felon[ies]” under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B).Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a “violent felony” under ACCA.

In a footnote, Kagan agrees with Scalia, and disagrees with the majority’s decision to retain the “purposeful, violent, andaggressive” test, but to conclude that it is “redundant” in this case, finding it “puzzling.”

1I understand the majority to retain the “purposeful, violent, and aggressive” test, but to conclude that it is “redundant” in this case. See ante, at 11. Like JUSTICE SCALIA, see ante, at 3 (dissenting opinion), I find this conclusion puzzling. I do not think the majority could mean to limit the test to “strict liability, negligence, and recklessness crimes.” Ante, at 11 (majority opinion). As JUSTICE SCALIA notes, see ante, at 3, that would be to eliminate the test’s focus on “violence” and “aggression.” And it would collide with Chambers v. United States, 555 U. S. 122 (2009)—a decision the majority cites approvingly, see ante, at 8— which applied the test to an intentional crime. See 555 U. S., at 128 (opinion of the Court), 130 (Appendix A to opinion of the Court) (holding that “knowin[g] fail[ure] to report to a penal institution” does not tinvolve “purposeful, violent, or aggressive conduct” (internal quotation marks omitted)). So I assume this test will make a resurgence—that it will be declared non-redundant—the next time the Court considers a crime, whether intentional or not, that involves risk of injury but not aggression or violence.

Kagan’s framing of the issues, and the relevant precedent is so precise.

Because we use the “categorical approach,” we do not concern ourselves with Sykes’s own conduct. See Taylor v. United States, 495 U. S. 575, 602 (1990). Nor do we proceed by exploring whether some platonic form of an offense—here, some abstract notion of vehicular flight—satisfies ACCA’s residual clause. We instead focus on the elements of the actual state statute at issue. More particularly, we ask whether “the conduct encompassed by the elements” of that statute, “in the ordinary case” (not inevery conceivable case), involves the requisite danger and violence. By making this inquiry, we attempt to determine whether the crime involved is “characteristic of the armed career criminal”—or otherwise said, whether the prohibited conduct is of a kind that “makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.”

Kagan draws factual distinctions, and finds that not all vehicular flights are dangerous.

But a vehicular flight offense need not target aggressive and dangerous behavior. Imagine the converse of the statute described above—a statute making it a crime to “willfully flee from a law enforcement officer without driving at high speed or otherwise demonstrating reckless disregard for the safety of others.” That hypothetical statute addresses only simple vehicular flight: mere disregard of a police officer’s directive to stop, devoid of additional conduct creating risk to others. This behavior— often called “failure to stop”—is illegal in most States

Curious footnote from Justice Kagan about why someone may refrain from pulling over immediately, where she cites stories of people being pulled over by pretend police officers, resulting in rapes.

3Indeed, a driver may refrain from pulling over immediately out of concern for his own safety. He may worry, for example, that road conditions make it hazardous to stop. Or a driver may fear that the person initiating the stop is a criminal rather than a police officer. See, e.g., Brennan, Rapist to Spend Life in Prison, Tampa Tribune, Feb. 18,2011, Metro section, p. 3 (“[A man] impersonating a police officer . . . used the ruse to pull over a woman . . . and then kidnap and rape her”); DeKunder, Watch for “Fake” Police, Local Authorities Warn, Northeast Herald, Jan. 14, 2010, pp. 12, 13 (noting several similar incidents).

“And so, under our precedents, a statute criminalizing only simple vehicular flight wouldnot fall within ACCA’s residual clause. I do not understand the majority to disagree.”

Kagan proceeds to parse the “Indiana provision under which Sykes was convicted [finding it] straddles the two hypothetical statutes I have just described.”

Kagan notes there are not statistics to show “what the ordinary case of vehicular flight actually is.”

Is it the person trying to escape from police by speeding or driving recklessly, in a way that endangers others? Or is it instead the person driving normally who, for whatever reason, fails to respond immediately to a police officer’s signal? The Government has not presented any empirical evidence addressing this question, and such evidence may not in fact exist.4 Begay, 553
U. S., at 154 (SCALIA, J., concurring in judgment) (“Needless to say, we do not have these relevant statistics”).

4The Government offers anecdotal examples and statistical surveys of vehicular flights, see Brief for United States 13–15, 17–22, but none helps to answer whether the “ordinary” case of vehicular flight is aggravated or simple. Cf. ante, at 4–6 (SCALIA, J., dissenting). The anecdotes and all but one of the surveys demonstrate only that some vehicular flights result in serious injury, a proposition no one does or could dispute. The single statistical study cited by the Government that posits an injury rate for vehicular flight concludes that about 4% of7,737 reported police pursuits harmed police or bystanders. But that study may well involve only aggravated flights. See C. Lum & G. Fachner, Police Pursuits in an Age of Innovation and Reform 55 (2008)(noting that the study relies on voluntary and non-systematic reporting and that participating police departments might not have reported“ informal” incidents). And even assuming the study is comprehensive, it is entirely consistent with the possibility that the “ordinary case”— i.e., the most common form—of vehicular flight is mere failure to stop, which produces a much lower rate of injury.

Notwithstanding the lack of statistics, Kagan finds “majority’s intuition that dangerous flights outstrip mere failures to stop—that the aggravated form of the activity is also the ordinary form—seems consistent with common sense and experience. So that judgment, even though unsupported by data, would likely be sufficient to justify the Court’s conclusion were subsection (b)(1)(A) the only relevant provision.”

Kagan would look to the Indiana statutes. “Vehicular flight in Indiana is therefore not a single offense, but instead a series of separate, escalating crimes. Each category captures conduct more dangerous than the one before it.”

That same focus on statutory structure resolves this case, because it reveals subsection (b)(1)(A) to aim at a single form—the least serious form—of vehicular flight. . . . To count both as ACCA offenses is to pay insufficient heed to the way the Indiana Legislature drafted its statute—as a series of escalating offenses, ranging from the simple to the most aggravated.

Kagan, citing a Scalia dissent finding that ““similar punishment does not necessarily imply similar risk.” disagrees with the majority’s which found that that Indiana ““treats violations of subsections (b)(1)(A) and(b)(1)(B) as crimes of the same magnitude”: They are both class D felonies carrying the same punishment”

Especially given that backdrop, I would not impute shoddy draftsmanship to the Indiana Legislature. I would heed what that body said, rather than assume (just because it made both offenses class D felonies) that it must have meant something different. And what the legislature said is that vehicular flight comes in different forms—one posing substantial risk of injury (subsection (b)(1)(B)) and one not (subsection(b)(1)(A)).

Justice Thomas replies to this line in a footnote:

Second, although JUSTICE KAGAN can envision a more perfectly drafted statute, we do not require perfection in statutory drafting. See, e.g., Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 12). I think it clear enough what the statute means.

Kagan notes the limited application of this opinion, and agrees with Scalia that the Court will soon have to reconsider ACCA.

So by its own terms, the Court’s opinion—our fourth applying ACCA’s residual clause in as many years—applies only to a single State’s vehicular flight statute as it existed from 1998 to 2006. Cf. ante, at 7 (SCALIA, J., dissenting) (“[W]e will be doing ad hoc application of ACCA . . . until the cows come home”).

The offense which Sykes was convicted over lacks an element of threat of physical injury, and would “respect that statutory difference.” In her conclusion, Justice Kagan takes note that the Indiana statute creates degrees of offenses.

The Indiana statute before us creates a series of escalating offenses dividing the universe of vehicular flight into discrete categories. One of those categories, subsection(b)(1)(B), requires proof that the defendant operated “a vehicle in a manner that creates a substantial risk of bodily injury.” That phrase tracks the language that ACCA’s residual clause uses to define a crime of violence. Other provisions in the Indiana statute demand even more—actual injury or death. In stark contrast, subsection (b)(1)(A), the least severe of the State’s vehicular flight offenses and the one of which Sykes was convicted, lacks any element relating to threat of physical injury. In deciding this case, I would respect that statutory difference. And because I would take the Indiana Legislature at its word, I respectfully dissent.

This is somewhat of a jab at the majority, which seemingly ignores the gradations that the Indian Legislature drew up. I suppose the majority “defers” to Congress but Kagan “defers” to the state Legislature. Interesting reversal of roles.