Is serial drunk-driving a violent felony within the meaning of the Armed Career Criminal Act? The Tenth Circuit says yes; Judge Michael McConnell says no. (Links via Howard Bashman and Doug Berman.)

The defendant was a Navajo man with a series of nonviolent drunk-driving convictions convicted for a firearms offense. Essentially, the dispute boils down to whether the word "otherwise" should be interpreted as surplusage, or as a hint to use the doctrine of noscitur a sociis. The difference is around a decade of prison time.

McConnell's dissent (that drunk driving is not a "violent felony" puts him at odds with the 8th, 439 F.3d 967 and 7th, 432 F.3d 706, Circuits, the latter per Judge Easterbrook ("[M]ost is not all, and the catch-all in subsection (ii) calls for risky activity to be classified with more traditional crimes of violence.")

Here is the statute:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;

From Edward Abbey, Desert Solitaire:

"This would be good country," a tourist says to me, "if only you had some water."
He's from Cleveland, Ohio.
"If we had water here," I reply, "this country would not be what it is. It would be like Ohio, wet and humid and hydrological, all covered with cabbage farms and golf courses. Instead of this lovely barren desert we would have only another blooming garden state, like New Jersey. You see what I mean?"
"If you had more water more people could live here."
"Yes sir. And where then would people go when they wanted to see something besides people?"
"I see what you mean. Still, I wouldn't want to live here. So dry and desolate. Nice for pictures but my God I'm glad I don't have to live here."
"I'm glad too, sir. We're in perfect agreement You wouldn't want to live here, I wouldn't want to live in Cleveland. We're both satisfied with the arrangement as it is. Why change it?"
"Agreed."

I'm more than a little pressed for time, but I must respond to Mr. Horton's kind answer (check the first comment for his answer) to my points below before I forget.

1. I do not accept, as Mr. Horton seems to take as given, that American behavior towards prisoners, or on general human rights terms, was especially delightful during WWII. I think a one word rebuke is sufficient to make the point - Korematsu.

2. Even if we were kind to run-of-the mill German soldiers (and I accept that we were), it is not clear to me that this extended to elite officers, or to intelligence type officers. Did we really not "torture" (in the broadest sense. The debates over the legal definition of torture do not interest me, because the distinction to me is between treating prisoners well, and otherwise) POW's we suspected of being SS operatives, or Nazi intelligence officers? To some extent, we do not know - Mr. Horton's point in his speech about the current press being supine (which I do not accept) is to be contrasted against the WWII press, which, being censored, was rather less effectual than supine. To the extent we know, newer histories, which I cannot cite now, suggest that we were not all that gentle with such people.

The distinction doesn't make any particular action right or not. It may indeed be no less acceptable to torture an SS officer than a Wehrmacht infantryman. But if what I've said above is true, my argument throws considerable doubt on even the reality of any distinction between the treatment of prisoners in WWII and today.

3. I do not accept Mr. Horton's claim that the Allied actions I described as much more horrific than any ad-hoc torture were either "on the battlefield" or "within the bounds set for warfare at the time they were used." The atomic bomb, by definition, fails the latter test. And the idea that Hiroshima, or even Dresden, were "battlefields" is a tenuous one at best. As contemporaries recognized (and not dovish ones. Churchill himself cringed) the point of things like Dresden was retribution and terror, not degrading the enemy's battlefield capacity. Such military justifications might have been papered over the real motivations, but I think that honest defenses of our bombings start with an acceptance that they were meant as demonstrations of brutality, in the hope that they would induce surrender.

I leave for readers to decide whether Mr. Horton's claim that I "seem to feel that the American tradition of humane treatment of prisoners is something meaningless" is justified or not.

4. Mr. Horton's response appears to rest on the assumption, which I noted in my original post, that torture is uniquely bad. The reason Mr. Horton believes it uniquely bad is a sensible one - "And how we treat a person disarmed and completely within our power is something very different again." Nonetheless, Mr. Horton must accept that it is no answer to accusations of brutality in war to say, "at least we treat our prisoners well." What if we used poison gas on undefended cities, but put our POW's in hotels? Obviously, that isn't a moral position. In that context, it seems completely clear to me that on any possible scale of brutality, WWII America's actions far outweigh anything even contemplated today.

Am I harping on a minor point? Perhaps. But in making what is, to me, a factually impossible argument, Mr. Horton sets aside what is a much more compelling position. That, in short, we ought to have progressed since WWII, and what passed as acceptable then is no longer acceptable now. And, because that's true, and because it is as a functional matter much better for American interests to treat our prisoners well, we should repudiate any policies that could even be considered as torture by the international community. That's the real argument, to me, and that argument doesn't rely on the odd reading of history on which Mr. Horton relied in his speech.

In any case, I repeat again that I am personally conflicted about the right answers here. But what is entirely clear to me is that if one's priority is fighting wars in a way consonant with some peacable American ideal, WWII is not an acceptable example. It was a terrible war fought against diabolical enemies. And we took off every possible glove to fight it.