At Tuesday’s hearing in Borden v. The United States, the judges suggested hypothetical behavior to determine whether a crime of recklessness qualifies as a violent crime under the “elemental clause” or the “violent clause” of the Armed Career Criminal Act . The scenarios included:
- Wave your arms;
- Swing a bat;
- Shooting a hat off a person’s head;
- Attempting to escape by car after a bank robbery;
- SMS while driving; and
- Driving drunk.
As shown here, the ACCA imposes a mandatory minimum 15-year life sentence if a person has three previous convictions of violent crime and is then convicted of illegal possession of a firearm. If the ACCA does not apply, a person faces a maximum of 10 years if they illegally own a gun. The difference in the penal areas is enormous.
Charles Borden pleaded guilty to possession of a firearm and the judge in the court ruled that all three of his previously harsh assault convictions were violent offenses under the ACCA. Borden refused to start a criminal offense that required the prosecutor to prove that Borden was only reckless and not intentional or knowledgeable.
The ACCA’s Violence Clause defines a violent crime as a crime that “has as its element the use, attempted use or threatened use of physical violence against the person of another”. Kannon Shanmugam, who argued on Borden’s behalf, alleged that an offense that required a prosecutor to demonstrate that the accused acted with sheer recklessness was not covered by the violence clause. Eric Feigin, who argued for the government, tried to convince the judges that the ACCA includes crimes with the reaction or state of mind of men of recklessness in its definition of violent crime.
During the hearing, the judges tried to reconcile Leocal against Ashcroft and Voisine against the United States. Neither case analyzed the ACCA, but both investigated similar issues. In the Leocal case, the Supreme Court ruled that a violent crime under the Immigration and Citizenship Act requires a greater response from men than negligence or accidental behavior. In the Voisine case, the Supreme Court found that if a domestic violence misdemeanor had to demonstrate the use of physical violence, then a male recklessness crime qualified under 18 USC § 922 (g) (9). In this context, the Supreme Court stated that the “use” of force focuses on the act of using something and that a person’s state of mind is indifferent.
Both parties used or distinguished Leocal and Voisine to support their arguments. argues that since Leocal requires the active use of force against another person for a crime to be a violent crime, the violence clause warrants a higher response from men than recklessness. As a result, the Supreme Court should trigger the ACCA’s mandatory minimum sentence enhancements only for crimes where the use of force by one person is aimed at another person. According to Shanmugam, the Circuit Courts misinterpreted Voisine, and if the Supreme Court were to rule on behalf of the government, it would expand the reach of the ACCA further than Congress intended.
Feigin claimed, however, that Voisine requires that the ACCA violent clause contain crimes of ruthlessness. Voisine confirms that the offense meets the ACCA definition of violent crime if the person uses violence that has harmed another. For the government, the “against the person of another” language in Leocal does not prevent crimes involving the recklessness of men from being eligible for an improvement in the ACCA conviction.
Justice Brett Kavanaugh stated that he interprets Leocal and Voisine to mean that negligence does not qualify as the use of force, while recklessness does. Judges Clarence Thomas, Samuel Alito and Neil Gorsuch asked Feigin to explain why Leocal does not apply here, while Judge Elena Kagan suggested that the issues raised in this case be distinguished from Voisine. Judge Sonia Sotomayor asked Feigin if the government wanted to reverse the Supreme Court.
Although the INA (the statute analyzed in Leocal) and the ACCA have similar “against the person of another” language, Gorsuch pointed out, the legal language analyzed in Voisine did not contain this sentence, which could limit the applicability of Voisine here. Chief Justice John Roberts noted that the government “places a great deal of weight on Voisine”. Sotomayor reminded Feigin that in their letter in Voisine, the government had said that language “against” was important for participation in Leocal, so their arguments in this case were a complete reverse. She wanted to know if the government was wrong then or now.
While Shanmugam argued that language “against someone else’s person” influenced the rea requirement of the force clause for men, Kagan seemed unsuccessful in this reasoning. Instead, she hypothesized that the sentence explained the Actus Reus or that the public prosecutor had to prove the accused committed.
Thomas, along with Judges Stephen Breyer and Amy Coney Barrett, raised questions relating to the applicability of the ACCA residual clause, which the Supreme Court had previously ruled unconstitutional. The residual clause defined a violent crime to include any crime that “includes[d] Conduct that presents a serious potential risk of bodily harm to another. “In the Begay v. United States case in 2008, the Supreme Court found that driving under the influence was not classified as a violent crime for the purposes of the residual clause. In its 2015 ruling of Johnson v. The United States, the court also ruled that the residual clause was vague and unconstitutional.
Thomas asked both parties whether reckless crimes would qualify as violent crimes under the residual clause. Breyer told Feigin that the Begay Supreme Court ruled that an offense under the residual clause must be “violent, aggressive and targeted,” and that he believed that the same should apply under the violence clause. Barrett was investigating Feigin to see if a decision in his favor would create the same uncertainty problem that caused the court to knock down the residual clause in Johnson.
On the one hand, Shanmugam stressed that crimes of ruthlessness should not fall under the residual clause, nor should they fall under the violence clause. Feigin, on the other hand, noted the “different roles” of each clause; The violence clause focuses on the use of force, while the rest clause contains violations of violence.
Gorsuch urged Feigin to explain why the forbearance rule did not apply to this case because the Supreme Court and county courts had difficulty determining whether recklessness qualified under the ACCA. According to the rule of leniency, the court should interpret legal language for the benefit of the accused when a criminal law is ambiguous. Feigin claimed that the language was not ambiguous and that Voisine helped clarify the intent of the Congress.
Kavanaugh alleged that individuals who qualify for the ACCA had committed at least four crimes and were therefore adequately informed of the improvements made to the ACCA conviction. At the other end, Sotomayor stressed to Feigin – and her fellow judges – that the judges do not ignore a person’s previous record during the sentencing; Judges, given a person’s previous beliefs, could impose a higher sentence even if the ACCA minimum requirements do not apply to crimes of recklessness.
Before Alito asked his questions to Feigin, he appeared to have indicated the frequency with which ACCA questions were brought before the Supreme Court. With a touch of sarcasm, he claimed, “[I]Always a pleasure to have another case related to the Armed Career Criminal Act, “Noting,”[I]It’s a real favorite. “We are now awaiting the decision of the Borden Court to determine whether recklessness crimes meet the ACCA’s definition of violent crimes under the Violence Clause. And because of the 15-year life sentence enhancements at stake if a person’s three previous offenses fall within the jurisdiction of the ACCA, the Supreme Court is likely to continue hearing future requests to limit or expand the ACCA’s reach.
Carla Laroche, Argument Analysis: Judges Examine Whether Crimes of Recklessness Require Longer Sentences Under the Armed Career Criminal Act,
SCOTUSblog (November 8, 2020, 1:04 p.m.), https://www.scotusblog.com/2020/11/argument-analysis-justices-conider-whether-crimes-of-recklessness-require-longer-sentences-under – armed-career-criminal-act /