Argument analysis: Justices consider whether crimes of recklessness require longer sentences under Armed Career Criminal Act
on Nov 8, 2020 at 1:04 pm
In Tuesday’s oral argument in Borden v. United States, the justices proposed hypothetical conduct to ascertain whether a crime of recklessness qualifies as a violent felony under the Armed Career Criminal Act’s “elements clause” or “force clause.” The scenarios included:
- Waving one’s arms;
- Swinging a bat;
- Shooting a hat off a person’s head;
- Attempting to escape with a car after a bank robbery;
- Texting while driving; and
- Drunk driving.
As previewed here, the ACCA imposes a mandatory minimum sentence of 15 years to life when a person has three prior violent felony convictions and then is convicted of possessing a firearm illegally. If the ACCA does not apply, a person faces a maximum of 10 years for possessing a firearm illegally. The difference in sentencing ranges is vast.
Charles Borden pleaded guilty to possessing a firearm, and the trial court judge ruled that all three of his prior aggravated assault convictions constituted violent felonies under the ACCA. Borden objected to the inclusion of one felony conviction that required the prosecutor to prove Borden acted recklessly only, not intentionally or knowingly.
The ACCA’s force clause defines a violent felony as a one that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Kannon Shanmugam, arguing on behalf of Borden, contended that a felony offense that requires a prosecutor to prove the accused person acted with mere recklessness does not fall under the force clause. Eric Feigin, arguing for the government, sought to persuade the justices that the ACCA’s includes crimes with the mens rea, or state of mind, of recklessness in its definition of violent felonies.
During the oral argument, the justices sought to reconcile Leocal v. Ashcroft and Voisine v. United States. Neither case analyzed the ACCA, but both examined similar issues. In Leocal, the Supreme Court held that a crime of violence under the Immigration and Nationality Act required a mens rea higher than negligence or accidental conduct. In Voisine, the Supreme Court found that, when a misdemeanor crime of domestic violence required showing the use of physical force, a crime with a mens rea of recklessness qualified under 18 U.S.C. § 922(g)(9). In holding so, the Supreme Court explained that “use” of force focused on the act of employing something, and was indifferent as to a person’s state of mind.
Both parties used or distinguished Leocal and Voisine to support their arguments. Shanmugam argued that since Leocal requires active employment of force against another person for a crime to be a violent felony, the force clause warrants a higher mens rea than recklessness. As a result, he argued, the Supreme Court should trigger the ACCA’s mandatory minimum sentence enhancements only in offenses where a person’s use of force targets another person. Circuit courts, Shanmugam claimed, have misinterpreted Voisine, and, if the Supreme Court were to rule for the government, it would broaden the ACCA’s reach further than Congress intended.
Feigin, however, contended that Voisine requires that the ACCA force clause include crimes of recklessness. Voisine confirms that if the person employed force that injured another, the offense meets the ACCA violent felony definition. For the government, the “against the person of another” language in Leocal does not eliminate crimes with the mens rea of recklessness from being eligible for ACCA sentencing enhancements.
Justice Brett Kavanaugh stated that he interprets Leocal and Voisine to mean that negligence does not qualify as use of force, while recklessness does. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch asked Feigin to explain why Leocal does not apply here, while Justice Elena Kagan suggested that the issues raised in this case can be distinguished from Voisine. Justice Sonia Sotomayor asked Feigin whether the government sought to have the Supreme Court reverse Leocal.
Although the INA (the statute analyzed in Leocal) and the ACCA have similar “against the person of another” language, Gorsuch pointed out, the statutory language analyzed in Voisine did not include that phrase, which may limit Voisine’s applicability here. Chief Justice John Roberts noted that the government was “putting an awful lot of weight on Voisine.” Sotomayor reminded Feigin that the government had said in its brief in Voisine that the “against” language was important to the holding in Leocal, so its arguments represented a complete reversal in this case. She wanted to know whether the government was wrong then or now.
While Shanmugam argued that the “against the person of another” language informed the force clause’s mens rea requirement, Kagan did not seem persuaded by that reasoning. Instead, she hypothesized that the phrase explained the actus reus, or act that the prosecutor must prove the accused committed.
Thomas, along with Justices Stephen Breyer and Amy Coney Barrett, posed questions related to the applicability of the ACCA’s residual clause, which the Supreme Court previously found unconstitutional. The residual clause defined a violent felony to include any crime that “involve[d] conduct that presents a serious potential risk of physical injury to another.” In Begay v. United States, in 2008, the Supreme Court found that driving under the influence did not qualify as a violent felony under the residual clause. In its 2015 Johnson v. United States decision, the court held further that the residual clause was vague and unconstitutional.
Thomas asked both parties whether reckless crimes would qualify as violent felonies under the residual clause. Breyer stressed to Feigin that the Supreme Court had ruled in Begay that an offense under the residual clause must be “violent, aggressive, and purposeful” and said he believes the same should apply under the force clause. Barrett probed Feigin to consider whether ruling in its favor would cause the same vagueness problem that led the court to strike down the residual clause in Johnson.
On the one hand, Shanmugam emphasized that recklessness crimes did not fall under the residual clause and should not fall under the force clause, either. On the other, Feigin noted the “distinct role” of each clause; the force clause focuses on the use of force, while the residual clause included offenses that may include the use of force.
Gorsuch pushed Feigin to explain why the rule of lenity did not apply in this case, given that the Supreme Court and circuit courts were having difficulty determining whether recklessness qualified under the ACCA. Under the rule of lenity, if a criminal statute is ambiguous, the court should interpret the statutory language to the benefit of the accused. Feigin contended that the language is not ambiguous and that Voisine helped clarify Congress’ intent.
Kavanaugh brought up that people who qualify under the ACCA would have committed at least four criminal offenses and, therefore, received sufficient notice about the ACCA sentencing enhancements. On the other end, Sotomayor highlighted to Feigin — and her fellow justices — that judges do not ignore a person’s prior record during sentencing; judges could impose a higher sentence in light of a person’s prior convictions, even if the ACCA mandatory minimums did not apply to recklessness crimes.
Before posing his questions to Feigin, Alito seemed to allude to the frequency with which ACCA issues have come before the Supreme Court. He claimed, with a tinge of sarcasm, “[I]t’s always a pleasure to have another case involving the Armed Career Criminal Act,” and noted, “[I]t is a real favorite.” We now await the court’s decision in Borden to determine whether recklessness crimes satisfy the ACCA’s definition of violent felonies under the force clause. And, because of the 15-years-to-life sentencing enhancements at stake if a person’s three prior felonies fall within the ACCA’s eligibility, the Supreme Court will likely continue to hear future requests to limit or broaden the ACCA’s reach.