A divided Supreme Court sided with a criminal defendant, ruling that a federal law that imposes strict mandatory penalties on federal gun offenders with three prior violent convictions can’t be invoked in crimes that require a reckless mental state.
The 5–4 ruling in the mandatory minimum sentences case known as Borden v. U.S. came on June 10.
The frequently litigated Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for people found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.” A violent felony is defined by the statute as one that necessarily involves “the use, attempted use, or threatened use of physical force against the person of another.”
Charles Borden Jr. pleaded guilty to a felon-in-possession charge, and prosecutors asked for an enhanced sentence under the ACCA. One of the three convictions they argued subjected Borden to the sentence-enhancement provision was for reckless aggravated assault in violation of Tennessee law.
Various lower courts around the country had split over whether the ACCA applies to prior offenses that can be committed recklessly. U.S. criminal law holds that recklessness is near the low end of the culpability scale, lower than purpose and knowledge, but higher than negligence.
Borden argued the offense shouldn’t count as a violent felony under the ACCA because a mental state of recklessness—in which a defendant consciously disregards a substantial and unjustified risk—was enough to convict. Only purposeful or knowing conduct satisfies the requirement that the use of force be “against the person of another,” he claimed.
The trial court disagreed and sentenced Borden as a career offender. That decision was upheld by the U.S. Court of Appeals for the 6th Circuit. The Supreme Court reversed the ruling.
Justice Elena Kagan wrote an opinion that Justices Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch joined. Justice Clarence Thomas reluctantly agreed with the result and wrote his own concurring opinion.
The phrase “against another,” when used to modify the phrase “use of force” in the statute “demands that the perpetrator direct his action at, or target, another individual,” which is inconsistent with a reckless mental state, Kagan wrote.
Kagan explained there are “four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence.”
“A person acts recklessly, in the most common formulation, when he ‘consciously disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards,” she wrote, referencing the Supreme Court’s 2016 ruling in Voisine v. U.S.
Treating reckless offenses as violent felonies “would impose large sentencing enhancements on individuals (for example, reckless drivers) far afield from the ‘armed career criminals’ ACCA addresses—the kind of offenders who, when armed, could well ‘use [the] gun deliberately to harm a victim,’” Kagan wrote, citing another precedent.
Offenses requiring a mental state of mere recklessness shouldn’t be considered violent felonies under the ACCA, Kagan wrote. They “are not the stuff of armed career criminals.”
Congress didn’t want the statute’s tough penalties to apply to “the too-common stuff of ordinary offenders,” she wrote.
Thomas disagrees with the court’s “vagueness doctrine” from cases such as the 2015 Supreme Court ruling in Johnson v. U.S. The doctrine “forces us to choose between aggravating a past error and committing a new one,” Thomas wrote. “I must choose the former.”
“Although I am ‘reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,’” Thomas wrote quoting the 2002 Supreme Court ruling in Ring v. Arizona, “I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.
“The elements clause [of the ACCA] does not encompass petitioner’s conviction because the statute under which he was convicted could be violated through mere recklessness.”
Justice Brett Kavanaugh wrote the dissenting opinion, which was joined by Chief Justice John Roberts, and Justices Samuel Alito and Amy Coney Barrett.
“ACCA does not ensnare low-level offenders or small-time criminals,” Kavanaugh wrote, describing Kagan’s opinion as “mystifying.”
“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 [i.e., criminal intent] of recklessness.”
Kagan’s opinion “overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence,” Kavanaugh wrote.