Deportation and driving: felony DUI and reckless driving as crimes of violence following Leocal v. Ashcroft.

• Author: Davenport, Maria-Teresa
• Position: Driving under the influence

1. INTRODUCTION

   Every thirty-one minutes, someone is killed in the United States as a result of an alcohol-related motor vehicle crash. (1) Because of the high societal costs, it is hardly surprising that states impose severe penalties for driving under the influence ("DUI") (2) of alcohol as a method of deterrence. But how far these penalties can extend has serious implications on other areas of law; particularly in the arena of immigration law, the classification of DUI convictions has far-reaching consequences.

   Some circuit courts (3) have ruled that aliens can be deported for multiple DUI offenses based on U.S. immigration law, (4) stating that aliens can be removed from the United States for committing an "aggravated felony." (5) An aggravated felony is a "crime of violence" in which the imprisonment term is at least one year. (6) Therefore, whether DUI is a crime of violence has significant impact on immigration law. Circuit courts that ruled DUI convictions were deportable offenses based their rulings on the determination that DUI is a crime of violence. (7) Other circuit courts disagreed and held that DUI is not a crime of violence. (8) The Supreme Court attempted to cure this circuit split in Leocal v. Ashcroft, holding that DUI is not a crime of violence, and therefore is not an aggravated felony that warrants deportation. (9)

   This Note argues that while the Supreme Court reached the proper decision, it construed the question very narrowly. The Supreme Court addressed:

   Whether, in the absence of a mens rea of at least recklessness with respect to the active application of force against another, DUI with serious bodily injury is a "crime of violence" under 18 U.S.C. [section] 16 that constitutes an "aggravated felony" under [section] 101 of the [Immigration and Nationality Act]? (10) By answering this question in the negative, the Court made it clear that DUI convictions absent amens rea component or with amens rea of negligence are not deportable offenses. However, the Court explicitly refused to address whether an offense with amens rea of recklessness as to the use of force against another person or property of another may constitute a crime of violence under 18 U.S.C. [section] 16. (11) By failing to address this question, the Court did not determine whether felony reckless driving is a deportable offense, thus leaving much confusion and complication in this area of law.

   Reckless driving, similarly to DUI, is a major societal problem in this country. It has been estimated that five percent of all motor vehicle fatalities are due to "[o]perating a vehicle in an erratic, reckless, careless, or negligent manner." (12) This translates to 2,132 of the 42,636 motor vehicle fatalities each year.

   Though this case was recently decided, a potential circuit split has developed in the classification of reckless driving, an offense closely related to DUI. Because the term classification has such far-reaching consequences on aliens and the same reasoning used by courts in excluding crimes with a mens rea of negligence could have been extended to exclude crimes with a mens rea of recklessness, the Court should next determine that intent to use force is required for a crime of violence. This would exclude both DUI offenses and a felony reckless driving offense, thus fully curing the ambiguity in this area of law.

2. HISTORICAL BACKGROUND

   Statutory authority for the deportation of legal aliens is derived from the Immigration and Nationality Act of 1957 ("INA"), (13) which grants the Attorney General the power to initiate deportation proceedings against legal aliens upon conviction of certain offenses. (14) Initially, the INA authorized deportation of a legal alien only for commission of a "crime involving moral turpitude." (15) The statute provides no definition for moral turpitude, but crimes such as fraud, murder, kidnapping, rape, prostitution, burglary, and theft have been determined by the courts to be representative. (16) An alien is subject to this provision if either: 1) at any time within five years after entry, the crime of moral turpitude is committed and the alien is imprisoned for any length of time; or 2) at any time after entry, the crime of moral turpitude is committed and the alien is imprisoned for a year or more. (17)

   1. AMENDMENTS TO THE STATUTE

      As immigration expanded in the 1980s, reported levels of criminal activity of aliens arose as well. (18) In response, Congress decided to take a hard-line approach against criminal aliens and impose harsher punishment. Their first act was the passage of the Anti-Drug Abuse Act of 1988 ("ADAA"), which expanded the scope of removable offenses by introducing the "aggravated felony" provision. (19) This new classification, which serves separately from the crimes of moral turpitude classification as an independent basis for removal, included only murder, drug trafficking, and weapons trafficking. (20)

      Congress expanded the aggravated felony list with the passage of the Immigration Act of 1990 ("Immigration Act"). (21) The Immigration Act added additional enumerated crimes to the list of removable offenses; the most notable addition was the inclusion of any "crime of violence" for which the term of imprisonment is five years or more. (22) The inclusion of crimes of violence is particularly relevant to this discussion because the determination of whether DUI is a crime of violence forms the basis of whether DUI is an aggravated felony rendering the alien criminal subject to deportation.

      The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), passed in the wake of the 1995 Oklahoma City bombing, significantly altered the INA and greatly expanded the types of removable offenses. (23) The AEDPA impacted the aggravated felony definition in two material ways. First, the AEDPA lowered the sentence requirement of the aggravated felony definition. (24) Whereas the determination of an aggravated felony initially required a sentence of at least five years, crimes carrying a sentence of only one year could now be classified as aggravated felonies. (25)

      The second material change was that the AEDPA removed the requirement that actual incarceration be imposed for determination of an aggravated felony, making suspended sentences and parole grants irrelevant to the deportation determination. (26) Rather, the AEDPA mandates that as long as the statute under which the alien is convicted carries a maximum sentence of at least a year, the offense can be considered an aggravated felony. (27) As a result of the AEDPA amendment to the INA, an aggravated felony is now a "crime of violence (as defined in section 16 of Title 18 ...) for which the term of imprisonment [is] at least one year." (28)

   2. CRIME OF VIOLENCE

      Under 18 U.S.C. [section] 16, a crime of violence under is defined as:

      i) an offense that has as an element the use, attempted use, or threatened use of physical force against the property of another, or

      ii) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. (29)

      1. Legislative History

         As previously mentioned, the concept of crime of violence as defined in [section] 16 was introduced as an aggravated felony for INA purposes in the Immigration Act. The [section] 16 definition was adopted as part of the Comprehensive Crime Control Act of 1984 ("CCCA"). (30) It is important to examine the legislative history of this act to appropriately determine what offenses Congress intended to be considered crimes of violence.

         The Senate Committee Report ("CCCA Senate Report") noted that although the term "crime of violence" was occasionally used in other law, it was previously undefined in the United States Code. (31) The origin of the term "crime of violence" stems from the District of Columbia Court Reform and Criminal Procedural Act of 1970 ("D.C. Reform Act"), which was passed fourteen years before the enactment of the CCCA. (32) The D.C. Reform Act substantially revised the District of Columbia's criminal code. One key alteration of the code was in the designation of crimes of violence as the types of offenses grave enough to entitle a court to order the detention of defendants before trial proceedings. (33) Because specific offenses were enumerated as crimes of violence under the D.C. Reform Act, there was no general definition of a crime of violence. (34)

         The CCCA Senate Report recognized that the offenses Congress intended to include as crimes of violence under [section] 16 were "essentially the same" as the types of offenses that the D.C. Reform Act enumerated as crimes of violence. (35) Accordingly, the crimes in the D.C. Reform Act (which were the types of crime Congress intended to include in [section] 16) comprised:

         Murder, forcible rape, carnal knowledge of a female under the age of sixteen, taking or attempting to take immoral, improper, or indecent liberties with a child under the age of sixteen years, mayhem, kidnapping, robbery, burglary, voluntary manslaughter, extortion or blackmail accompanied by threats of violence, arson, assault with intent to commit any offense, or an attempt or conspiracy to commit any of the foregoing offenses, as defined by any Act of Congress or any State law, if the offense is punishable by imprisonment for more than one year. (36) Each of the enumerated offenses denotes conduct requiring specific intent for commission of the crime. (37) The inclusion of voluntary manslaughter and the exclusion of involuntary manslaughter are particularly illustrative of this point, as voluntary manslaughter has an intent element that is lacking for involuntary manslaughter. (38)

         It is also important to note the inclusion of burglary as a crime of violence. This is particularly significant to the inquiry of whether DUI is a crime of violence because many courts have compared the two...