Issues
Does classifying a crime committed with a mental state of recklessness as a violent felony expand the reach of the Armed Criminal Career Act beyond its intended purpose?
This case asks the Supreme Court to determine whether a “violent felony” under the Armed Career Criminal Act of 1984 includes crimes in which an individual used force recklessly. Petitioner Charles Borden asserts that the United States Court of Appeals for the Sixth Circuit incorrectly held that committing a crime with a mens rea of recklessness constitutes a violent felony because the mental state of recklessness does not include the intention or knowledge that would satisfy the requirement of using force “against the person of another.” Respondent United States counters that a mens rea of recklessness satisfies the element because the focus is on the “use” of the physical force, which does not discern between mental states. The outcome of this case has important implications for criminal procedure, due process rights, and the necessary interpretation of the text of the ACCA.
Questions as Framed for the Court by the Parties
Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.
Facts
In the course of a traffic stop in April 2017, police found Petitioner Charles Borden in possession of a pistol. United States v. Borden at 266. Borden, who had three prior felony convictions for aggravated assault, admitted that he purchased the gun with methamphetamine and intended to sell it. Id. at 267. He pleaded guilty to possession of a firearm as a felon. Id. at 266. When sentencing Borden, the government applied the Armed Career Criminal Act of 1984 (“ACCA”) to increase his sentence, citing to his three previous “violent felony” convictions for aggravated assault. Id. Borden had a fourth felony conviction for promotion of methamphetamine manufacture. Petition for Writ of Certiorari at 8. Borden responded that reckless aggravated assault and the promotion of methamphetamine manufacture are not violent felonies under the ACCA’s force clause, which requires an element of “use, attempted, or threatened use of physical force against the person of another” to qualify as a violent felony. Id. at 17. Specifically, Borden argued that crimes committed with a reckless mental state do not involve use of force against another person. United States v. Borden at 267.
The United States District Court for the Eastern District of Tennessee ruled against Borden, citing the Sixth Circuit Court of Appeals decision in United States v. Verwiebe, which found that reckless aggravated assault is considered a violent felony under the force clause. Id. Applying the ACCA, the court increased Borden’s sentence under the Federal Sentencing Guidelines to a minimum of 180 months of imprisonment. Id. This sentence was reduced to 115 months after the court considered 18 U.S.C. § 3553(a) factors and granted the government’s motion for downward departure based on his assistance to law enforcement. Id.
In his plea agreement, Borden retained his right to appeal if the ACCA was applied to his sentencing, and he appealed to the Sixth Circuit Court of Appeals. Response to Petition from Respondent United States of America at 3. The Sixth Circuit affirmed the district court’s holding, stating that district court’s application of Verwiebe to classify Borden’s Tennessee reckless aggravated assault conviction as a violent felony under the ACCA did not unduly extend his sentence. United States v. Borden at 268. The court reasoned that, even without applying the ACCA, the crime of possessing a firearm while a felon allows a sentence of up to 120 months in prison; therefore, the court held, Borden’s 115-month sentence did not violate his due process rights. Id. at 267–68. Borden appealed the Sixth Circuit’s ruling and the Supreme Court of the United States granted certiorari on March 2, 2020.
Analysis
RECKLESS ASSAULT AS A VIOLENT FELONY
Petitioner Borden argues that a crime committed with the mens rea, or mental state, of recklessness cannot be classified as a violent felony under the ACCA, noting that “violent felony” has an element of “use, attempted use, or threatened use of physical force against the person of another.” Brief for Petitioner, Charles Borden at 18. Committing a crime with the mental state of recklessness means that the perpetrator did not intend to cause harm, but that he was aware of the risk of harm from his actions and chose to disregard that risk and act anyway. Id. at 20. Borden maintains that when a person uses force recklessly, it is not targeted towards another person and that the individual yielding force is not cognizant of the force impacting another individual. Id. at 18. Therefore, Borden concludes, a violent felony’s requisite element of force against another is not satisfied by a crime requiring a mental state of recklessness, and a crime committed recklessly cannot be a violent felony. Id. Borden further argues that, under the ACCA, Congress intended to target gun possession by felons who are actively violent and have the most culpable mental states of purpose and knowledge by subjecting them to more severe punishments. Id. at 23. If a defendant has the mental state of purpose, he acts with conscious intent to cause particular harm whereas if a defendant acts with the mental state of knowledge, he acts with practical certainty that a particular harm will result. Id. Borden states that felonies committed under the less culpable mental state of recklessness or negligence, such as driving under the influence, reckless parenting, and fleeing after shoplifting, are inherently different from crimes committed with the mental state of purpose or knowledge, such as intentionally shooting another individual. Id. Borden maintains that the latter is the type of actively violent danger that Congress sought to address with the ACCA. Id. at 24.
Borden asserts that the plain English meaning of “force” and the statutory context of the ACCA support his understanding of the force clause to exclude crimes committed with the mental state of recklessness. Brief for Petitioner at 19. He claims that interpreting the force clause to include crimes committed recklessly ignores the clause’s plain English meaning of the word “against.” Id. Borden also examines the surrounding text of the force clause, noting that it addresses “attempted” and “threatened” use of force, and states that because is it not possible to recklessly attempt to use force, the force clause does not encompass crimes committed recklessly. Id. at 25.
Respondent United States counters that Borden’s aggravated assault conviction is a violent felony under the ACCA’s force clause, noting that Borden’s conviction required reckless bodily harm of another. Brief for Respondent, United States at 10. As such, the government claims that reckless aggravated assault requires use of physical force against the person of another, falling within the ACCA’s definition. Id. at 11. Further, the government argues that Voisine v. United States, a decision in which the Supreme Court held that a domestic violence crime under 18 U.S.C. § 921(a)(33)(A)) includes reckless domestic violence assault, clarifies that the ACCA’s language encompasses crimes committed recklessly. Id. at 12. The government rejects Borden’s congressional intent argument, arguing there is no indication that Congress meant to distinguish knowledge and recklessness under the ACCA and contending that the ACCA’s force clause was specifically intended to include violent crimes that are committed recklessly, such as robberies, aggravated assaults, and murder resulting from reckless conduct. Id. at 16.
The government further asserts that Borden’s interpretation of the force clause to exclude all crimes committed with a reckless mental state is illogical. Brief for Respondent at 22. The government pushes the logic of Borden’s interpretation, arguing that it leads to undesirable and unintended consequences in which attempted murder would qualify but murder committed recklessly would not qualify under the ACCA. Id. at 23. The government emphasizes that, while the ACCA requires force used against another person and Voisine does not, this requirement was designed to exclude property crimes, not to specify a mental state of knowledge or purpose. Id. The government concludes that the Supreme Court’s reasoning in Voisine appropriately extends to the ACCA, arguing that if Congress wanted to exclude reckless conduct from the ACCA, it would have specified or used more limiting language than “use.” Id.
RULE OF LENITY
Borden notes that prior to Voisine, circuit courts generally held that the ACCA excluded crimes committed recklessly, finding its language to be ambiguous. Brief for Petitioner at 43. Borden contends that the Sixth Circuit has inappropriately extended Voisine to the force clause under the ACCA, and given the recent change to this approach, criminal defendants have not been given fair notice that crimes committed with a reckless mental state are subject to the ACCA’s harsher sentences. Id. at 44.
Borden maintains that the ACCA is at least ambiguous on whether crimes committed with a reckless mental state can be classified as violent felonies under the force clause. Brief for Petitioner at 44. As such, Borden concludes, the rule of lenity, which establishes that courts must resolve ambiguous statutes in favor of a criminal defendant, applies to the force clause. Id. Therefore, Borden contends, the Supreme Court must apply the narrower interpretation of what crimes qualify as violent felonies under the ACCA, excluding crimes with the mental state of recklessness. Id.
On the other hand, the United States counters that the rule of lenity is not applicable to Borden’s case, stating that the rule is only appropriate where a statute so ambiguous that, even after examining the statute’s text, history, and purpose, a court can only speculate about Congress’ intent. Brief for Respondent at 45. The United States argues that the ACCA does not meet this criterion and that Voisine clarified any ambiguity and corrected circuit courts’ misreading of Leocal v. Ashcroft, a case in which the Supreme Court held that crimes of violence under federal statutes do not include crimes committed with a mental state of negligence. Id. at 46. The United States further asserts that following Voisine’s clarification, circuit courts have appropriately applied the ACCA’s force element similarly, extending the ACCA’s reach to include crimes committed with the mental state of recklessness. Id.
The United States further argues that criminal defendants have not been deprived of fair notice that crimes committed with a reckless mental state are subject to the ACCA. Response to Petition from Respondent United States of America at 5–6. The United States contends that Verwiebe, holding that a Tennessee reckless aggravated assault constitutes a violent crime under the elements clause of the Sentencing Guidelines, did not change the interpretation of the law such that it would unforeseeably increase Borden’s sentence beyond what he could have expected when he was caught possessing a firearm as a felon. Id.
Discussion
BALANCING APPROPRIATE DEGREES OF PUNISHMENT
The National Association of Federal Defenders, in support of Borden, argues that including a mental state of recklessness would frustrate the purpose of the ACCA because the ACCA only seeks to target glaring offenders that habitually commit deliberate, violent crimes. Brief of Amicus Curiae National Association of Federal Defenders, in Support of Petitioner at 4–8. The National Association of Federal Defenders further maintains that including the mental state of recklessness would result in anomalous outcomes because the ACCA is meant to apply only to specific purposeful, violent crimes, not overarching reprehensible conduct. Id. at 11–17. Families Against Mandatory Minimums (“FAMM”), in support of Borden, asserts that including the mental state of recklessness would go too far beyond the purpose of the ACCA by including a broad range of individuals who acted recklessly, but who are unlikely to pose a continuing risk to the public. Brief of Amicus Curiae FAMM, in Support of Petitioner at 5–6. FAMM further maintains that the ACCA aims to target a very small group of repeat violent offenders, and including reckless conduct in the category of offenses that can be categorized as violent felonies would erroneously increase the number of those offenses, risking overcriminalization and inequitable outcomes. Id. at 14, 17.
The United States, in contrast, asserts that excluding all crimes committed with a reckless mental state would mean that, under the ACCA, as long as an offender did not have a particular victim in mind, a crime committed with a blanket disregard for human life would not be covered under the ACCA, including reckless homicide or reckless assault. Brief for Respondent at 9, 30. The United States further maintains that excluding a reckless mental state would result in anomalous results in which putting victims in fear of injury would qualify as a violent felony, but actually injuring a victim after disregarding the possibility of doing so would not. Id. at 33–34. Additionally, the United States argues that there is a low risk of over-criminalization by including crimes with a reckless mental state because the ACCA requires three separate convictions for violent felonies that all occurred on different occasions to specifically target recurrent criminals. Id. at 30. The Criminal Justice Legal Foundation (“CJLF”), in support of the United States, similarly contends that it is difficult for a court, without a direct confirmation from the offender, to actually distinguish whether the violent crime was committed intentionally or recklessly, and excluding recklessness from the ACCA would prevent the prosecution of offenders that have repeatedly demonstrated a lack of care by inflicting serious bodily harm on an intended, or any, human life. Brief of Amicus Curiae Criminal Justice Legal Foundation, in Support of Respondent, at 2, 11.
IMPLICATIONS FOR INTERPRETING CRIMINAL STATUTES
Americans for Prosperity Foundation (“APF”), in support of Borden, contends that reading in a mental state of recklessness into criminal statutes, absent a clear congressional specification, would allow offenders that are not habitual, purposeful, violent offenders to be subject to incredibly severe sentences, such as the 15-year sentence imposed by the ACCA. Brief of Amicus Curiae Americans For Prosperity Foundation, in Support of Petitioner, at 25–27. Additionally, APF argues that blurring the line between intentionally and recklessly causing harm would result in negative consequences for criminal law because there is strong distinction between offenders that precisely intend to cause specific, substantial harm, and those who recklessly cause harm as a byproduct of the crime. Id. at 24–25. Leah Litman and other law professors (“Law Professors”), in support of Borden, assert that reading in reckless conduct into the ACCA would result in irregular applications of what would constitute reckless conduct because of different definitions of recklessness between states, and between state and federal law. Brief of Amici Curiae Law Professors Leah Litman et al., in Support of Petitioner at 22, 24. Furthermore, the Law Professors maintain that both state and federal courts would need to analyze what type and degree of risk would meet the standard of recklessness, which would lead to inconsistent application of the law and federal courts “guessing” as to the proper construal of criminal state statutes. Id. at 26–29.
On the other hand, the CJLF asserts that excluding the mental state of recklessness from violent crimes under the ACCA conflicts with the interpretation of other criminal statutes. Brief of Amicus Curiae Criminal Justice Legal Foundation, in Support of Respondent at 4, 8. The CJLF maintains that the Model Penal Code (MPC) states that purpose, knowledge and recklessness can satisfy a mental state if the crime does not specify one, but negligence cannot, demonstrating that the MPC does not draw the line between knowledge and recklessness, but rather between reckless and negligence. Id. at 4. The CJLF further contends that there is a reason that the MPC and the majority of states recognize the mental state of recklessness as an alternate mental state and draw an important distinction between negligence and recklessness, and not between recklessness and purpose or knowledge. Id. at 6, 7, 12. The United States maintains that excluding the mental state of recklessness from violent felonies under the ACCA would have severe implications for the interpretation of other criminal statutes that do not specify, but Congress intended to include, a mental state of recklessness because significant injury can still result from a crime committed recklessly. Brief for Respondent at 35–36.
Written by
Edited by
Acknowledgments
Additional Resources
Emma Cueto, 5 Supreme Court Access To Justice Cases To Watch, Law360 (Oct. 4, 2020).