Opinion analysis: Bank robbery statute perhaps not so very bad after all
When the Court heard oral arguments last month in the case of hapless bank robber Larry Whitfield, Justice Antonin Scalia complained that the federal law at issue – which calls for at least ten years in prison for a bank robber who “forces another person to accompany him” during or when fleeing from the robbery – was a “very bad” statute. But Scalia and the rest of the Court apparently overcame any qualms that they may have had about the statute, issuing a unanimous five-page opinion that gave a near-total victory to the government.
The facts of the case are straightforward. After a botched bank robbery, Whitfield (who had by then discarded his gun) tried to hide from the police in the home of an elderly woman, Mary Parnell. Whitfield instructed Mrs. Parnell to go with him to another room – somewhere between four and nine feet away – where she suffered a heart attack and died. A jury convicted him of violating 18 U.S.C. § 2113(e)’s “forced accompaniment provision.”
Whitfield challenged his conviction in the U.S. Court of Appeals for the Fourth Circuit, arguing that the provision did not apply to him because he had only forced Mrs. Parnell to travel a very short distance with him. Congress, he contended, only intended for the statute to apply when there was “substantial movement” involved.
Whitfield was unsuccessful in the lower court, and today his efforts proved equally unsuccessful in the Supreme Court. In an opinion by Justice Scalia that was announced by Chief Justice John Roberts (because, it turned out, Scalia was stuck in traffic), the Court recounted that Congress passed this “forced accompaniment” provision over eighty years ago, in response to a series of bank robberies. Although Congress has made changes to other parts of the statute, it noted, the text of the “forced accompaniment” provision remains the same. And now as in 1934, the Court explained, “to ‘accompany’ someone mean[s] to ‘go with’ him” – even if only for a relatively short distance. (Demonstrating that, like the Chief Justice, he too has literary chops, Justice Scalia bolstered this conclusion with examples from the works of Charles Dickens and Jane Austen.)
Although the federal government at oral argument had rejected any sort of “de minimis” rule, the Court made clear that there are at least some limits to the “forced accompaniment” provision. It would not apply, the Court explained, to truly minimal movement – “for example, the movement of a bank teller’s feet when the robber grabs her arm.” But if a bank robber forces someone to move from “one place to another,” even within the same room, that’s enough for the “forced accompaniment” provision to kick in. The Court reasoned that whether the provision applies should not hinge on the distance that the robber forces the victim to travel, because a short distance can also be dangerous for the victim if, for example, the robber uses her as a human shield. And even if Congress may have had “most prominently in mind John Dillinger’s driving off with hostages” when it enacted the provision, the Court concluded, the provision that it actually passed is much broader than that.
The Court’s very brief opinion does not address a concern voiced by both Justice Elena Kagan and the Chief Justice at oral argument: the possibility that adopting the government’s broader interpretation of the “forced accompaniment” provision could create opportunities for prosecutorial overreaching. What this means for other pending cases, such as Yates v. United States, in which the Justices have expressed similar unease with the potential scope of prosecutorial discretion, is not clear. However, Yates can take some comfort in the fact that the Justices at oral argument clearly seemed to view his conduct – destroying undersized fish – as far less serious than Whitfield’s, which resulted in the death (however unintentional) of Mrs. Parnell. And that difference may ultimately prove crucial.