Wednesday, December 3, 2014

"It's a very bad statute"

This post is next in the series reviewing cases pending before SCOTUS this term.

"It's a very bad statute." This was Justice Scalia's observation during oral argument in Whitfield v. United States last Tuesday. The statute, 18 USC 2113(e), imposes a ten-year statutory minimum for forcing "any person to accompany him" when avoiding or attempting to avoid apprehension for bank robbery.

This is a case about how to interpret and apply one word: "accompany." The issue is whether § 2113(e)'s forced-accompaniment offense requires proof of more than a de minimis movement of the victim. The underlying Fourth Circuit decision presents a circuit split, with the Tenth Circuit on the right side of the issue. See US v. Marx, 485 F.2d 1179 (10th Cir 1973).

Whitfield broke into the home of an elderly woman while fleeing a botched bank robbery. He had her move into another room of the house to avoid being seen by the police; in those few steps, she died of a heart attack.

The defense argument was one of distance -- "accompany" should not include such a limited trek. Instead, it should require "substantial" movement, or at least more than de minimis. This was not well received by the Court.

On the other side, however, the Court was concerned that prosecutors would seek leverage in plea negotiations by charging subsection (e), even when the movement was "comparatively trivial." Justice Kagan questioned leaving the interpretation to a prosecutor. The Government responded with a just-trust-us argument,  retreating to the thin cover of the (unenforceable) U.S. Attorney's Manual. That did not seem to assuage the Court, either.

This is the second case this term where SCOTUS has been suspicious, if not outright critical, of the specter of overly-broad prosecutorial discretion. The focus of this decision and the impending decision in Yates (are fish tangible objects?) could be more on prosecutorial (in)discretion than statutory interpretation.

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