Fractured Supreme Court Cripples Armed Career Criminal Act

The U.S. Supreme Court today issued a fractured decision that will severely limit the provision of the Armed Career Criminal Act that allowed the federal government to put away habitual felons who commit three violent felonies.

Definitions of crimes generally require both a bad act and a bad state of mind. For many violent crimes in many states, the bad state of mind may be either intentional or reckless. In deciding whether a prior conviction is for a violent crime, the Supreme Court looks only at the definition, not the actual facts of the crime.

Under today’s decision in Borden v. United States, No. 19-5410, violent crimes that could possibly be committed recklessly will no longer be considered “violent” for ACCA purposes no matter how clearly intentional the crime was in the actual case.

There is no majority opinion providing a coherent rationale for this appalling result.

Justice Kagan wrote the plurality opinion, joined by Justices Breyer, Sotomayor, and Gorsuch. Justice Thomas did not join that opinion but cast the deciding vote to reverse. He wrote, “This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.”

Justice Kavanaugh wrote the dissent, joined by Chief Justice Roberts, Justice Alito, and Justice Barrett.

Surprisingly, the Court today holds that those kinds of reckless offenses such as reckless assault and reckless homicide do not qualify as ACCA predicates under the use-of-force clause. The plurality does not dispute that those offenses involve the “use of physical force,” but concludes that those offenses do not involve the “use of physical force against the person of another.” The plurality reaches that rather mystifying conclusion even though someone who acts recklessly, as those examples show, has made a “deliberate decision to endanger another,” Voisine v. United States, 579 U. S. 686, ___ (2016) (slip op., at 7), and even though an individual who commits a reckless assault or a reckless homicide generally inflicts injury or death on another person. The plurality reaches that conclusion even though most States (both as of 1986 and today) criminalize reckless assault and reckless homicide as offenses against the person, and even though Congress enacted ACCA’s use-of-force clause in 1986 to cover the prototypical violent crimes, such as assault and homicide, that can be committed with a mens rea of recklessness. And the plurality reaches that conclusion even though the Court concluded just five years ago (when interpreting a similarly worded domestic violence statute) that reckless offenses such as reckless assault and reckless homicide do entail the use of physical force against another person—there, “against a domestic relation” or “victim.” See id., at ___ (slip op., at 12); 18 U. S. C. §921(a)(33)(A).

I will have more to say on this later and will be doing a teleforum on it for the Federalist Society.

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