WASHINGTON _ Justice Brett Kavanaugh quickly joined in the questioning in his first day on the Supreme Court, as the justices struggled to make sense of a federal law that imposes longer prison terms on criminals who have three violent felonies on their records.
At issue Tuesday was whether a purse snatching or breaking into a recreational vehicle qualified as a violent felony.
At 10 a.m., the justices emerged from behind the red velvet curtain, and Kavanaugh took his seat at the far end next to Justice Elena Kagan. They smiled and chatted back and forth until the argument got underway.
A lawyer for Denard Stokeling, a Florida man, argued that his 20-year-old conviction for "unarmed robbery" for snatching a woman's necklace should not be deemed a violent felony. Government lawyers disagreed and argued "robbery by sudden snatching" involves a use of physical force.
Kagan asked a government lawyer whether grabbing a woman's handbag from her shoulder would qualify as a violent felony.
Yes, the attorney said.
"I wouldn't be happy about it," she said, adding that if the criminal did not have a gun or use force, it did not sound like a violent crime.
Kavanaugh then cited a 2015 opinion written by the late Justice Antonin Scalia that turned on whether there was "a substantial degree of force" involved. If so, that would qualify as a violent felony, he suggested.
Kavanaugh asked at least half a dozen questions during the two hours of argument. The justices did not sound split along ideological lines. Instead, all of them said they were seeking a legal formula for applying the Armed Career Criminal Act, a 1986 federal law that imposes prison terms of 15 years to life for criminals who are convicted of three violent felonies.
In a second case on the same topic, a lawyer for Jason Sims, an Arkansas man, argued that breaking into an unoccupied recreational vehicle should not qualify as a violent felony. In the past, judges have ruled that breaking into a home counts as a violent crime, but not breaking into a vehicle.
Stanford law professor Jeffrey Fisher, who was appointed to represent Sims, said the court should continue to draw a line between burglaries of homes and vehicles, including RVs. Home burglaries are the more serious crimes because there is greater chance they could result in injuries and violence. By contrast, breaking to a vehicle is far less likely to result in violence, he said. And if so, the criminal will be charged with assault or robbery and get a longer prison term, he said.
Kavanaugh said he was not impressed with the argument that the defendant had not been given proper notice that a harsher penalty was possible. "If you are convicted three times of breaking into a recreational vehicle," he said, "you are on notice."
On Wednesday, the court will hear a major immigration case in which Kavanaugh could hold the deciding vote. It pits the American Civil Liberties Union against the Trump administration and arose from a class-action lawsuit in California. At issue is whether legal immigrants who have a past crime on their record, including drug possession, can be detained for deportation by immigration authorities _ even long after they've served their time for the crime _ and held in jail without a bond hearing.
The federal immigration law says the government "shall take into custody any alien" with certain crimes on their record "when the alien is released."
The ACLU sued on behalf of lawful noncitizens like Eduardo Padilla, who came to the United States in 1966 as an infant and became a lawful permanent resident in the Sacramento area. He has five children and six grandchildren, all of whom are U.S. citizens. Padilla had two convictions for drug possession in 1997 and 1999 and served 90 days in jail in 2002 for having an unloaded pistol in a shed.
In 2013, federal agents arrested him for those past crimes and held him in jail for deportation. But the U.S. 9th Circuit Court of Appeals said the "mandatory detention" provision did not apply to immigrants like Padilla who were released years ago. He was released on a $1,500 bond because a judge decided he did not present a danger and was not likely to flee.
However, in Nielsen v. Preap, the administration is urging the court to overturn the 9th Circuit and uphold mandatory detention for "criminal aliens," even if they have served time for their crimes years ago.
