“Words, words, words, first from him, then from you–is that all you blighters can do?”, moaned Eliza Doolittle when tiring of her speech lessons in “My Fair Lady.” Ms. Doolittle should be thankful she is not Larry Whitfield. Larry got an extra 10 years in prison for a bank robbery prosecuted in federal court because of a single word. During the crime he forced someone to “accompany” him by moving a grand total of 9 feet from one room to another. this act resulted in 10 years being added to his sentence. The United States Supreme Court heard arguments in the case yesterday. The docket for the case can be found here.
Larry is not only unlucky, he also seems to be like too many criminals, bad at his work. He botched a bank robbery in 2008 in North Carolina. Fleeing the scene, Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.
A conviction under the federal bank robbery statute carries a maximum sentence of 20 years in prison, but no minimum sentence, pursuant to 18 U.S.C. § 2113(a). If the bank robber forces another person “to accompany him” in committing the robbery or while in flight, however, that additional offense carries a minimum sentence of ten years in prison and a maximum sentence of life imprisonment. 18 U.S.C. § 2113(e). The question that the Supreme Court grappled with yesterday was whether § 2113(e)’s forced-accompaniment offense requires proof of more than a de minimis movement of the victim.
According to published reports, the oral argument had a spirited debate over the meaning of the word “accompany.” Justices Scalia and Ginsburg noted that the word often is often associated with movements over short distances: Scalia “accompanies” his wife to the table. Ginsburg described how a nurse might “accompany” a patient to the Intensive Care area. Most of the Court seemed to agree that the word is a rather poor choice by Congress in an effort to distinguish more culpable robbers from those less worthy of lengthy punishment. However, Justice Scalia reminded the others that courts are usually not supposed to fix poor drafting by Congress.
Chief Justice Roberts continues to show that he appreciates the real life consequences of the cases before the Supreme Court. Roberts suggested that forcible movements during bank robberies were commonplace, giving the government unwarranted power in plea negotiations. “The prosecutor is armed with another 10 years automatically in his pocket. And then you use that to extort a plea bargain of, you know, six years, from somebody who might otherwise have wanted to go to trial.”
Lawyers often seem overly concerned with words, it is the lifeblood of our work. I applaud Larry Whitfield’s legal team for taking his case to the highest court in the land. A decision is expected by next Spring.