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statistics. The statistics cited in Sitz about the costs of DWI were n~isonderstoodmd misapplied from a hid evidence poiut of view, and tvould probablynot be admissible as scientific or expert evidence to prove an adjudicativefact. See, eg, Ua116ert u, dIerreIDo~uPhc~r~t~ncet~ticals, Inc., 113 S.Ct.2786 (1993); I;rrj~?m Tirw Co. u. Cart11ichne~ 119 S.Ct 1167 (1999). Thefindings in ilIoitdJ: Gnluan-Rodrigtie4 and Fortes are also unsupported byevidence.Na~~!ikins wd Sitz are distinguishable because cou~ls liax the constitutiondpower to write evidence law and Fourth Amendment collstihltiondlaw ~11nrb111:~~ u. ~llrdisoo, 5 U.S. 137 (1803) (the courts, not Congress,liave the find say on constitutional issues). Wen coum do 11ave the po~wto make law, tl~ey may rely 011 poiicy preferences, judicial pl~ilosophy, or"legislative facts," wvl~ich tl~ey nmy &id either by judicial notice or by weighingevidence offered by parties.Under our Constitution, however, judges do hot write statuto~y criminallaw. Tlme is no precedent for the notion that a court can rely on fit~clingsof facts, be they adjudicative or legislative, to fill ill gaps in a criminal stahlteas they did in 111011iij: Gnl~!nir-KotIrigt~ex, and Fortes, to nlention a fmucases.There is no precedent for judicial relimce on balancing tests or hd-ings offrrcts to intellwet thewords of cruuinal stah~tes enacted by Coiigress,especially one that iucreases the shh~to~y nlaximun~ sentence fro111 2 to 20yeas or 10 to life without parole. The power to define "violent felon):""agg~mvated felony," and "serious violent felon)+' belongs to Congress, notthe courts. Congress ,nay not delegate hat power to courts.6. Tile catcli-all provisions violate the Fifth hncndtrent's fairwanling requirementsDue Process requires that cruuioal stahltes give fair u%rtung. UnitedStcites 11. huiet; 520 US. 259,266 (1997). Vagw statutes do not meet thisrequirement. The vagueness doctrine ba~s courts from enforcu~g a smtewritten so Illat "n~en of colntroa illtellige~ice nwst tiecessarily guess at itsthe otheis might Iia\,e no scienter reqoirenient either. Congress's definitiol~ofagglmvated felony does liot nlentio~~ D\R. Section 16(b) is based on afactual messe~cnt of the degree and nature of risk ullhercnt in any crin~e,so long as it is a felony.The degree of risk hherent in ma~y crimes is unlu~onn HistoricaU~what is the statistical pmb.nIrility that an escape will explode into violence,meaning and differ as to its application[.]" COIIII~!J, u. Get~erfll or that ajoyriderudl flee at high speed, that afelonyD\VIuill result in injuqCo~tstlrictiotr Co., 269 US. 385,391 (1926). Tlle doctri~~e applies wl~ether to anoti~er? If anyone lu~ous, it uould be a specialist in an obscure area ofa law's uncertainly relates to the crirue or, as in illis case, the punisl~~~~ent sti~dy, not the geneid public. The "nature" and "dsW of D\VI, for example,u~l~icli a~ay be imposed. SeeE~,cim, 333 U.S. at 495 (refusing to enforce a are enlotio~rauy charged questiolls. Nevertheless,law punishing alien Larboring); see also LaPa\ze & Scott, Substanti\,eCriminal La!\', § 2.3($, at 127 (cit~tions omitted). "[Nlo one n~ay berequired at peril of life, libert): or propery to speculate as to the limningof penal statutes." hazett~ u. i\'e~i~Jersej; 306 U.S. 451, 453 (1939); seealso Cicp of Chicago u. Norales, 527 US 41 (1999) (vagrmcy law toowgue).The need for fdr war~dog of what the law requires is inextricably hikedto legislative po\ven. Dltrier: 520 U.S. at 265.The fair uTarnilig requirement also reflects the deference dueto tile kgi~hhlre, wluch possesses the power to define crimesand their ponisl~niei~the treated as. . . . [Clonduct n~ynotcrininal r~niess it lias bee11 so defined by [a collipetent]authority . . . before it has taken place ... .520 U.S. at 265 11.5(citations omitted)[n]ueprocess bars courtsfro~ti appl}%ig ai~ovel coosructionof a criminal stahlte to conduct that neither the skltutenor anyprior judicial decisio~~ has fairly disclosed to be within itsscope. I(/. at 266 (siniilar to the way the i3 Post F~tcto Clausebars retroactive application of stahltes).The catch-all provisioas are similar to the la\\. at issue in Lnnier in thatneither describes what specific conduct it forbids. ~riier dealt wit11 18U.S.C. 3 242, that ge~~eially prohibits "the dep~jvation of any rights . . .secured .. . by the Constihitioll." hior espl~ied that "the touchstone iswhether the statute, staiding aloue or as construed, made it reasonablyclear at the releva~itime that the defentluit's conduct was cri~~d."520U.S. at 267. In knier the issue WNS whether a defcndar~t could knowwhether his conduct deprived others of rights secured by the Collstihttion.Here, the issne is whether a defendant could h~o~vu~hether his prior o[fenseinvolves the unlegislated and unadjodicated risk punished by the enha~lcementIw:These provisions are similar to a law criminaliziig abo~lions, that theSupreme Coi~rt stivck dow 011 vaguelms grounds in Colnrrffi u Frnnklin,439 U.S. 379, 390-91 (1979). That law cvi~nidized abortions "if there issufficient reason to believe that the feh~s may be viable." The court ruledthat tlie\