January 13, 2015

If a man makes a woman move 4 to 9 feet from one room to another in her house, has he "force[d] her to accompany him"?

"Federal law establishes enhanced penalties for anyone who 'forces any person to accompany him' in the course of committing or fleeing from a bank robbery."... Larry Whitfield, fleeing police after a botched bank robbery, entered the home of 79-year-old Mary Parnell through an unlocked door. Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away.). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby."

So Whitfield made the old woman move 4 to 9 feet. Does the basis for enhancing the sentence apply?

The Supreme Court gives a unanimous yes in Whitfield v. United States (PDF).

In the opinion, Justice Scalia forces us to accompany him into the Oxford English Dictionary:
[T]o “accompany” someone meant to “go with” him. See Oxford English Dictionary 60 (1st ed. 1933) (defining “accompany” as: “To go in company with, to go along with”).
He's going to the first edition because it came out in 1933, and Congress added that forced-accompaniment language to the federal statute in 1934.
The word does not, as Whitfield contends, connote movement over a substantial distance. It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank “to the vault”; “to the altar” at a wedding; “up the stairway”;or into, out of, or across a room. English literature is replete with examples. See, e.g., C. Dickens, David Copperfield 529 (Modern Library ed. 2000) (Uriah “accompanied me into Mr. Wickfield’s room”); J. Austen, Pride and Prejudice 182 (Greenwich ed. 1982) (Elizabeth “accompanied her out of the room”).

It is true enough that accompaniment does not embrace minimal movement—for example, the movement of a bank teller’s feet when the robber grabs her arm. It must constitute movement that would normally be described as from one place to another, even if only from one spot within a room or outdoors to a different one. Here, Whitfield forced Parnell to accompany him for at least several feet, from one room to another. That surely sufficed.
The Court rejects the argument that the severity of the sentence indicates that Congress was talking about something more like driving away with a hostage — John Dillinger-style. In 1934, the enhancement included the death penalty. Today, it means a minimum of 10 years and a maximum of life in prison. That's a lot for a man who botched a robbery, ran in through an unlocked door, and guided a lady from a hallway into a computer room. (Not a lot for a man who scared a lady to death, but scaring her to death was not the charge.)

37 comments:

rehajm said...

The issue comes with whether or not he committed a "bank robber act" after taking possession the woman. Walking her a few feet constitutes "a bank robber act".

The ruling on the field is confirmed.

traditionalguy said...

Hostages are getting all the breaks these days. Bank robbery is not the career it used to be. Maybe the answer for young folks is to go to law school first.

richlb said...

rehajm wins the thread.

Hagar said...

The peculiarities of the American justice system does not inspire confidence.

Ignorance is Bliss said...

rehajm said...

The issue comes with whether or not he committed a "bank robber act" after taking possession the woman. Walking her a few feet constitutes "a bank robber act".

Oh bullshit. He was in the act of fleeing. As such he would have had to maintain possession of her all the way through the flight.

tim in vermont said...

rehajm, I was looking for a like button.

Thorley Winston said...

Hostages are getting all the breaks these days. Bank robbery is not the career it used to be. Maybe the answer for young folks is to go to law school first.

Not robbing banks would be my advice. The tuition is cheaper and the final exam has a higher pass rate.

tim in vermont said...

As to the point of this post, like the Cowboys decision, it may be the law, but it is not justice.

JK Brown said...

So with the enhancement, I guess it is actually more logical just to kill the hostage rather than try to keep control of them?

tim maguire said...

Several decades ago Ohio passed a law adding a much stricter sentence for crimes involving a gun. The intention, obviously, was to discourage criminals from using guns.

In it's application, however, "involving a gun" was used broadly to mean "a gun was involved." So the criminals could get the enhanced sentence if there was a gun on scene, whether it was theirs or not (and not just "stole a purse that had a gun in it," though that was one of the sentence enhanced cases).

Because many criminals got the enhanced sentence whether they used a gun or not, the intent of the statute was turned on its head as more criminals used guns.

I see something similar at work here--aggressive prosecutors and brain-dead judges strictly adhering to definitions are undermining the purpose of the law.

David said...

Just remember who has the power in the society. In most cases, it isn't you.

Todd said...

Technically speaking, is not "guided a lady from a hallway into a computer room" kidnapping? Would/should not matter if she moved or not as she was not free to move as she wished due to being under the forced control of another.

James Pawlak said...

A simpler solution (As the police were not there) would be to have the victim or other good citizen pull out a concealed gun and apply the FBI protocol of "Two to the chest and one to the head" OR, at the short distance involved, the SAS/SEAL standard of a "Double Tap To The Head"!

KLDAVIS said...

Given the language used in the decision synopses posted, I'd have thought the word 'forces' would have come under more scrutiny than 'accompany'. The described "guiding" or even a curt, "Get over there!" doesn't seem to rise to a use of force.

Ann Althouse said...

"Technically speaking, is not "guided a lady from a hallway into a computer room" kidnapping? Would/should not matter if she moved or not as she was not free to move as she wished due to being under the forced control of another."

You're thinking of the common law of torts, but the question here is what the statutory language means.

Peter said...

The word "guided" here seems (intentionally?) ambiguous here, as it doesn't necessarily imply compulsion.

Although a problem in many bank robberies is probably that the average IQ of bank robbers has gone down ever since the reward/risk ratio of robbing with a keyboard exceeded that of robbing with a gun.

If the bank robber lacked the intelligence to know what he was doing, how is the law supposed to figure it out?

Richard Dolan said...

The opinion is short, and as it frames the issue, obviously correct. It was also an appeal from a conviction, meaning that the gov't is entitled to all reasonable inferences from the evidence. Whether Whitfield used 'force' was a question for the jury, and they decided it against him (assuming he contested the issue at trial). Words have established meanings, determined by how speakers of the language use them. That's the principle in play, and necessarily so if laws are to be applied uniformly over time.

But what was most interesting about the decision was this passage: "And even if we thought otherwise, we would have no authority to add a limitation the statute plainly does not contain. The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that."

I think you will see the same idea repeated when the SCOTUS decides the pending Obamacare case -- does the statute mean what is says, and is that the end of the analysis? The answer in this case was 'yes' and 'yes'.

ThreeHeaded Throop said...

This particular sort of legal jeopardy will never attach to me since I will never attempt to rob anyone. It's tempting to say don't do the crime etc and dismiss the matter.

Criminal justice, though, is just one more weapon in the political arsenal nowadays. It's a stinking, corrupt mess. I regard police, prosecutors, and criminals all with the same contempt I have for politicians. It is truly a miserable state of affairs. I could never serve on a jury, being sure that every word on both sides is a lie.

Left Bank of the Charles said...

We don't know that the bank robber just meant for the woman to accompany him 4 to 9 feet, because she died.

It's a little cheeky for the defense to argue she wasn't forced to accompany him far enough.

Larry J said...

She had a heart attack, probably for fright, as a result of him breaking into her home while fleeing from police. He should be charged with manslaughter at least, if not 2nd degree murder for a death as a result of a crime. Tack on the bank robbery charge and keep things simple.

Revenant said...

A simpler solution (As the police were not there) would be to have the victim or other good citizen pull out a concealed gun

Who concealed-carries while at home in their own living room?

The Cracker Emcee said...

"Who concealed-carries while at home in their own living room?"

Unless I'm nekkid or at work, I always have a LCP (a tiny .380 pocket auto) in my right pants pocket. After 25 years it seems as natural as carrying my keys or wallet.

The Godfather said...

As quoted in the opinion, the statute reads:

“Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense . . . forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.”

The Supremes (all of them!) are obviously correct. The defendant was found by the jury to have forced the victim to accompany him from one room to another in the course of attempting to avoid apprehension. Thus, the 10 years or life provision of the statute applied.

Here's what I think is interesting. Some may think that the result in this case is harsh. Let's assume it is. What do we do about it? Do you empower judges to override statutes when they have harsh results? As a practical matter, the Supreme Court has that power -- if the Supreme Court said the statute couldn't be applied in this case because the result is too harsh, no authority could overrule them. But all the Justices, from the vicious Scalia to the lovable Ginsburg, agreed to let that harsh sentence stand.

So if you want to alleviate the harshness of the law, you're going to need a different mechanism than the Supreme Court to do so.

I am not a robot.

Hagar said...

"...., or if death results shall be punished by death or life imprisonment.”

The professor left that little bit out of her posting.

MaxedOutMama said...

A 10 year minimum isn't a lot for the offense, though.

The bottom line is that he did force the lady to go with him. In this case, it frightened her literally to death. The reason the charge is valid is that it is the fact of being under a criminal's control that is so terrorizing and dangerous (and this is a logical reaction that a normal person would have).

He's probably lucky that he wasn't charged with felony murder in state court. He'll get a lesser sentence for the forced-accompaniment.

I can understand the angst the perp feels - after all, he must have confessed to "guiding" the lady down the hall. And that was used to add the charge.

As for the court's decision, surely it must be right. The fact that your hostage keels over and dies of fright can't be used to argue mitigation. It is the fact of being forced under control to go with the person that creates the additional danger and the fear.

And I don't find Whitfield's argument over the distance to be that material. There is (it seems to me) to be a difference between pointing a gun and making someone open a cash drawer and taking a person into the back (alone) to try to "recover" more of the bank's assets.

Whitfield could have told the woman to leave the house. He didn't. He apparently took physical control of her, and intended to retain her within the house. That sort of hostage-taking certainly satisfies the plain language of the law's text, and I can't see the court making some distinction up to somehow demarcate this situation from others such as Scalia cites because it doesn't appear that it is within the scope of the law as it was written.

jono39 said...

Explain to me how one might enhance death by hanging which he richly deserves instead of the years of counseling which he will be gifted in prison.

Tina Trent said...

"That's a lot for a man who botched a robbery, ran in through an unlocked door, and guided a lady from a hallway into a computer room."

Oh, is it? Have you ever suddenly been held hostage in your home by some thug who forced his way in? If not, it's pretty easy to toss off this sort of ignorant garbage, I suppose.

What does it matter that the robbery was botched? What does it matter that the door was unlocked? That the hallway was short? Should only people living in big houses with long halls be considered prisoners of home invaders? Does an unlocked door imply that the innocent woman cowering inside deserves a bit of the fist? "Forced accompaniment" is an awkward phrase, not a laughable thing. Whether you call it "guiding" or "accompanying" or square dancing, the act was forced imprisonment of a terrorized woman in her home by an invader. The act was the invasion and the snatching of the victim; the fact that the victim died suddenly shouldn't work in the thug's favor. Nor should the distance travelled. What if he held her by the door without moving: would that be any less holding her hostage? Not legally, not morally, not rationally.

What a shockingly ignorant and callous post. You really should know better.

Having been the victim of a brutal home invasion and having counseled many victims of similar crimes, I can tell you that the moment a stranger bursts into your residence, all you see is your death. And you'll do anything to not anger, or startle that person. You hope to live. You obey and beg for mercy. Batting around this sort of human suffering as if it is a word game or a ball of yarn indicates moral rot. Get help, or religious counsel, or at least try to feign a little more respect for others' suffering. And, shove that diminutive, "guided."

Also, apologize to this woman's survivors for minimizing her suffering so carelessly in print.

Char Char Binks said...

Fry him. I'll accompany him to the chair, however far that is.

Skookum John said...

Ten years seems rather inadequate for an armed robbery, even without a kidnapping. I'd make it 25 years on the first offense, and mandatory death on the second. And mandatory death for all 3-time felons. But not before downgrading about 80% of current felony crimes back to misdemeanors, in line with long standing Anglo-Saxon tradition.

MaxedOutMama said...

Tina - I sympathize with your sentiments, but in fairness to the blogstress, Ann Althouse is and has been a law professor, and she is addressing this decision and question from the perspective of law.

I agree with both the SC and you that is the fact of being placed under another's physical control by force that is the determinant, what the plain language of the law sets forth, and not the distance traveled. There is a difference between being robbed and detained and physically controlled for the purpose of ensuring the perp's safety by ensuring your danger, and it looks like the perp did exactly that in this case.

But I do not think that the accusation of callousness stands, because human beings with compassionate feelings must put them aside to evaluate such questions, and the necessity is all the greater the more one's natural sympathies are aroused. I can recall a few of Ann's other posts that have clearly shown her concern and natural sympathy for victims of crimes, and a deep desire that the victims of crimes not be forgotten or neglected.

Finally, I am very sorry for what you suffered.

Zach said...

Supposedly, accompanying a robber into another room is one of the most dangerous things you can do. The chances of getting killed go through the roof, even if you're just going into the back room.

This seems like a case where the strict interpretation and the common sense interpretation give the same result.

Douglas said...

Yes.

R. Chatt said...

I have to go with Tina Trent on this one. There is something odd about minimizing the act of "guiding" the woman, whatever that means, or trivializing it. The fact is that he imposed his will on her, regardless of the number of feet involved in going from one room to another. She had no idea what he might have planned to do to her, and neither do we. What she experienced was a loss of personal control and sheer terror. This is an instance where the letter of the law actually supports the spirit of the law.

wwjbd said...

Tina - Many people believe that all common law felonies, as long as an intentional mens rea can be proven, merit permanent exclusion from society. Law professors suffer from a professional deformation - as a side effect of the pride of life they feel as elite analysts, they almost always forget to care about real individuals. In this case, you are more than right - the evildoer with his violent and selfish hatred for innocent and vulnerable old women would be treated very generously with just 10 years of room and board in a jail.

SteveBrooklineMA said...

What if he forced her to play piano as he sang the National Anthem? Forced accompaniment! 10 years in the slammer.

~ Gordon Pasha said...

Probably killed the ACA as well.

amielalune said...

What's wrong with the death penalty for bank robbery? We'd only need to impose it a few times and I'd be willing to bet that the bank robbery rate would suddenly drop. (sarc-sort of)

Althouse and her ilk are way too concerned about "being too harsh" to criminals. That's one of the reasons this country is full of them.