SUPREME COURT OF THE UNITED STATES
_________________
No. 19–5410
_________________
CHARLES BORDEN, Jr., PETITIONER
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the sixth circuit
[June 10, 2021]
Justice Kavanaugh, with whom The Chief
Justice, Justice Alito, and Justice Barrett join, dissenting.
In 1984, Congress passed and President Reagan
signed the Armed Career Criminal Act, known as ACCA. That Act seeks
to prevent individuals with a serious record of violent crimes from
unlawfully possessing firearms and committing additional violent
crimes. As amended in 1986, the Act generally mandates a minimum
15-year prison sentence for any felon who has amassed at least
three prior convictions for a “violent felony” and then commits a
fourth felony by unlawfully possessing firearms.
ACCA defines the predicate “violent felony”
offenses to cover, among other things, an offense punishable by a
prison term exceeding one year that “has as an element the use,
attempted use, or threatened
use of physical force against the
person of another.” 18 U. S. C. §924(e)(2)(B)(i)
(emphasis added). By defining violent felony in that manner,
Congress ensured that the prototypical felonies involving physical
force against a person—in particular, assault, homicide, rape, and
robbery—would qualify as predicate offenses under ACCA.
ACCA does not ensnare low-level offenders or
small-time criminals. Rather, as relevant here, ACCA applies only
to individuals who have been previously convicted of
three
separate violent felonies committed on different occasions, and who
then proceed to commit a
fourth felony by unlawfully
possessing firearms. Congress determined that those serial violent
felons pose serious risks of harm to American communities and
warrant a 15-year mandatory minimum sentence under ACCA.[
1]
In this case, Charles Borden was convicted in
2018 for unlawfully possessing a firearm in violation of
§922(g)(1). The District Court concluded that Borden was subject to
ACCA because of his three prior convictions in 2002, 2003, and 2007
for aggravated assault under Tennessee law.[
2]
Borden does not dispute that his 2002 and 2003
Tennessee felony convictions—which were for
intentional or
knowing aggravated assault—constituted violent felonies for
purposes of ACCA. But he challenges the classification of his 2007
Tennessee felony conviction—which was for
reckless
aggravated assault. Borden argues that reckless felonies do not
qualify as predicate offenses under ACCA. According to Borden, a
crime committed recklessly, such as reckless assault or reckless
homicide, does not entail the “use of physical force against the
person of another.” Instead, Borden contends, only intentional or
knowing felonies satisfy that statutory definition.
Most States criminalize reckless assault and
reckless homicide. And the Model Penal Code and most States provide
that recklessness as to the consequences of one’s actions generally
suffices for criminal liability. Importantly, moreover, Borden does
not dispute that ACCA’s phrase “use of physical force”
on its
own would include reckless offenses, such as reckless assault
or reckless homicide. But Borden nonetheless contends that ACCA’s
phrase “use of physical force
against the person of another”
somehow excludes those same reckless offenses, including reckless
assault and reckless homicide.
To put Borden’s argument in real-world terms,
suppose that an individual drives a car 80 miles per hour through a
neighborhood, runs over a child, and paralyzes her. He did not
intend to run over and injure the child. He did not know to a
practical certainty that he would run over and injure the child.
But he consciously disregarded a substantial and unjustifiable risk
that he would harm another person, and he is later convicted in
state court of reckless assault. Or suppose that an individual is
in a dispute with someone in the neighborhood and begins firing
gunshots at the neighbor’s house to scare him. One shot goes
through the window and hits the neighbor, killing him. The shooter
may not have intended to kill the neighbor or known to a practical
certainty that he would do so. But again, he consciously
disregarded a substantial and unjustifiable risk that he would harm
someone, and he is later convicted in state court of reckless
homicide.
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).
In my view, the Court’s decision disregards
bedrock principles and longstanding terminology of criminal law,
misconstrues ACCA’s text, and waves away the Court’s own recent
precedent. The Court’s decision overrides Congress’s judgment about
the danger posed by recidivist violent felons who unlawfully
possess firearms and threaten further violence. I respectfully
dissent.[
3]
I
The Court holds that the phrase “use of
physical force against the person of another” in ACCA’s violent
felony definition applies only to crimes that entail an intentional
or knowing use of force against another person, not to crimes that
entail a reckless use of force against another person. In reaching
that conclusion, the plurality does not dispute that the statutory
phrase “use of physical force” on its own would encompass reckless
offenses such as reckless assault and reckless homicide. See
ante, at 6–7; see also
Voisine v.
United
States, 579 U.S. 686 (2016). But the plurality seizes on the
additional phrase “against the person of another.” According to the
plurality, the combined statutory phrase “use of physical force
against the person of another” excludes reckless offenses such as
reckless assault and reckless homicide.
As a matter of textual interpretation, that
analysis is seriously flawed for two independent reasons, either of
which suffices to defeat the plurality’s conclusion. First, the
phrase “against the person of another” in criminal statutes like
ACCA has zero to do with
mens rea. That phrase instead
reflects a centuries-old term of art in the criminal law that
distinguishes offenses against the person from offenses against
property. Second, even if the phrase “against the person of
another” did not reflect a longstanding term of art, the ordinary
meaning of the statutory phrase “use of physical force against the
person of another”—just like the phrase “use of physical
force”—encompasses reckless offenses such as reckless assault and
reckless homicide.
A
First, and most fundamentally, the
phrase “against the person of another” in ACCA has zero to do with
the required
mens rea for predicate violent felonies. That
phrase simply incorporates established nomenclature for classifying
crimes and reflects a longstanding criminal-law term of art that
distinguishes offenses against the
person from offenses
against
property. As the Government explains, that phrase
simply “limits the scope” of the use-of-force clause to “crimes
involving force applied to another person, thereby excluding many
property crimes, like arson.” Brief for United States 23.
When Congress “borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice,” we generally assume that Congress “knows and adopts the
cluster of ideas that were attached to each borrowed word in the
body of learning from which it was taken.”
Morissette v.
United States,
342 U.S.
246, 263 (1952); see also
Air Wisconsin Airlines Corp.
v.
Hoeper,
571 U.S.
237, 248 (2014);
Sekhar v.
United States,
570 U.S.
729, 733 (2013); A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 73–77, 305 (2012).
So it is here. For centuries, criminal offenses
have typically been broken down into categories—including, most
prominently, offenses against the person and offenses against
property.
An offense against the person is often defined
as a “crime against the body of another human being.” Black’s Law
Dictionary 1302 (11th ed. 2019) (“offense against the person”). The
object of the offense is a person. Those offenses include, for
example, assault, homicide, rape, and robbery.
An offense against property is often defined as
a “crime against another’s personal property.”
Ibid.
(“offense against property”). The object of the offense is
property. Those offenses include, for example, burglary, arson,
extortion, fraud, and destruction of property.
That nomenclature has a long historical pedigree
originating in the common law. Blackstone, for example, sets forth
various categories of “Public Wrongs,” which include “Offences
against the Persons of Individuals” and “Offences
against Private Property.” 4 Commentaries on the Laws of
England, chs. 15, 17 (1769) (emphasis in original); see also H.
Stephen, Summary of the Criminal Law (1834) (setting forth
categories of criminal offenses including “Offences against the
Person” and “Larceny and Other Offences against Property”); W.
Auckland, Principles of Penal Law (2d ed. 1771) (setting forth
categories of criminal offenses including “[o]ther Crimes relative
to the Persons of Individuals” and “Crimes relative to
Property”).
Those classifications remain prevalent today.
Like Blackstone, most state criminal codes categorize criminal
offenses and employ the terminology of offenses against the person
and offenses against property.[
4]
That was also true back in 1986 when Congress
amended ACCA to include the use-of-force clause. Tennessee’s
criminal code illustrates the point. As of 1986, criminal offenses
under Tennessee law fell under one of several chapter headings,
including “Offenses Against the Person” and “Offenses Against
Property,” among others. See Tenn. Code. Ann., Tit. 39, chs. 2, 3
(1982). At least 32 other state criminal codes employed similar
nomenclature at the time of ACCA’s amendment in 1986.[
5]
The Model Penal Code, which was adopted in 1962,
likewise uses that nomenclature. The Code identifies two broad
categories of crimes as “Offenses Involving Danger to the Person”
and “Offenses Against Property.” ALI, Model Penal Code, pt. II
(1980).
Leading treatises on criminal law similarly
group most offenses into those two broad categories: “Offenses
Against the Person” and “Offenses Against Property.” 2–3 W. LaFave,
Substantive Criminal Law, pts. III, IV (3d ed. 2018); 2 C. Torcia,
Wharton’s Criminal Law, pt. II (15th ed. 1994); 3
id., pt. V
(1995); see also 2 W. LaFave & A. Scott, Substantive Criminal
Law, chs. 7, 8 (1986) (“Crimes Against the Person” and “Crimes
Relating to Property”); 2 Torcia, Wharton’s Criminal Law, pt. II
(14th ed. 1979) (“Offenses Against the Person”); 3
id., pt.
V (1980) (“Offenses Against Property”).
As those many examples show, the phrase
“offenses against the person” may be worded in slightly different
ways, but each variation serves to distinguish offenses against the
person from other kinds of offenses, including offenses against
property. Cf. Black’s Law Dictionary, at 1302 (cross-referencing
definition of “offense against the person” with “crimes against
persons”).
In 1986, Congress amended ACCA to cover violent
felonies. Not surprisingly, ACCA’s definition of “violent felony”
tracks that historically rooted and still common nomenclature. The
definition provides in relevant part:
“[T]he term ‘violent felony’ means any
crime punishable by imprisonment for a term exceeding one
year . . . that—
“(i) has as an element the use, attempted
use, or threatened
use of physical force against the
person of another; or
“(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
18 U. S. C. §924(e)(2)(B) (emphases added).
The first clause of the violent felony
definition (the use-of-force clause) encompasses offenses involving
force
against the person—and thus necessarily includes
assault, homicide, rape, and robbery.[
6] The second clause of that definition (the
enumerated-offenses clause) lists certain physically risky offenses
against property—in particular, burglary, arson, extortion,
and offenses involving the use of explosives. See
Taylor v.
United States,
495 U.S.
575, 584–587 (1990).
This Court’s precedents have drawn that same
distinction when analyzing ACCA’s violent felony definition. In
Begay v.
United States, for example, the Court stated
that violent felonies under ACCA “include both crimes against the
person (clause (i)) and certain physically risky crimes against
property (clause (ii)).”
553
U.S. 137, 144 (2008).
The statutory history further illustrates the
distinction. When originally enacted in 1984, ACCA covered only
robbery (an offense against the person) and burglary (an offense
against property). 18 U. S. C. App. §1202(a) (1982 ed.,
Supp. II). In 1986, Congress expanded the scope of violent crimes
covered under ACCA. Congress added the use-of-force clause so as to
encompass not just robbery but also additional offenses against the
person, such as assault, homicide, and rape. And Congress added the
second clause to encompass not just burglary but also some
additional physically risky offenses against property, including
arson, extortion, and use of explosives.[
7]
In short, the phrase “against the person of
another” in ACCA specifies the category of crimes to which the
use-of-force clause applies and limits the reach of the clause by
excluding other categories of crimes—in particular, crimes against
property.
That understanding of the phrase “against the
person of another” also helps to make sense of other, similarly
worded statutory definitions. Take 18 U. S. C. §16(a),
which defines the term “crime of violence” for purposes of many
other federal criminal and immigration laws. That definition
includes any “offense that has as an element the use, attempted
use, or threatened use of physical force
against the person or
property of another.”
Ibid. (emphasis added). Like
ACCA’s use-of-force clause, §16(a)’s “against” phrase simply
specifies the category of offenses to which the statute applies,
using established nomenclature. The only difference between the two
definitions is that §16(a) covers crimes “against property” in
addition to crimes “against the person.”[
8]
Finally, state practice confirms that the phrase
“against the person of another” in ACCA reflects a longstanding
term of art and is not an oblique and novel way of excluding
reckless offenses. As of 1986, when Congress amended ACCA to
include the use-of-force clause, 28 States had reckless assault
statutes, and more than 30 States had statutes that covered
reckless homicide. See Brief for United States 19–21, and nn. 4–7.
Most of those States classified those crimes as offenses against
the person, see n. 5,
supra— even though those crimes
only required a
mens rea of recklessness.
Congress legislated against the backdrop of
those state criminal laws. It strains credulity to say that in
ACCA, Congress both (i) mirrored the traditional “against the
person” terminology from those state criminal codes that included
reckless assault and reckless homicide, but (ii) nonetheless
silently intended that common and traditional language to take on a
novel and obscure meaning that would exclude reckless assault and
reckless homicide. As the Court has stated before, we “should not
lightly conclude that Congress enacted a self-defeating statute.”
Quarles v.
United States, 587 U. S. ___, ___
(2019) (slip op., at 8); see also
Stokeling v.
United
States, 586 U. S. ___, ___ (2019) (slip op., at 8). If
Congress in 1986 wanted to exclude from ACCA’s scope all of those
state criminal laws covering reckless crimes against the
person—including reckless assaults and reckless homicides—Congress
easily could have said (and surely would have said) that only
“intentional or knowing” uses of force were covered. It did not.
And we should not disregard the longstanding meaning of a
criminal-law term of art—namely, offenses against the person—to
smuggle into ACCA a new and unusual
mens rea requirement
that Congress did not see fit to include.
The plurality claims that the exact words
“offense against the person” or “crime against the person” do not
appear in ACCA’s use-of-force clause.
Ante, at 13–15. But in
fact, Congress used the phrase “against the person of another” in
the use-of-force clause to describe the “crime[s]” that are covered
by ACCA. §924(e)(2)(B). By using that language, Congress
incorporated a historically rooted and widely used nomenclature for
classifying crimes, and thus narrowed the
category of
offenses to which that clause applies—namely, to offenses
against the person.
To sum up: The plurality does not dispute that
reckless offenses entail the “use of physical force.” The plurality
argues, however, that reckless offenses do not entail the “use of
physical force against the person of another.” But the phrase
“against the person of another” reflects longstanding criminal-law
nomenclature—a term of art—that specifies the
category of
covered predicate offenses that involve the use of force, such as
assault, homicide, rape, and robbery. That language has zero to do
with the
mens rea required for predicate offenses under
ACCA. That conclusion should end this case given that the plurality
acknowledges that the phrase “use of physical force” otherwise
encompasses reckless offenses such as reckless assault and reckless
homicide.
B
Second, in the alternative, even if we
divorce the phrase “against the person of another” from its
term-of-art usage in criminal law, as the plurality mistakenly
does, that phrase as a matter of ordinary meaning still does not
speak to
mens rea and cannot reasonably be read to exclude
reckless offenses such as reckless assault and reckless homicide.
Instead, as the Court recognized in
Voisine v.
United
States in interpreting a “similarly worded” statute covering
the “use of physical force,” ACCA’s use-of-force clause is
“indifferent as to whether the actor has the mental state of
intention, knowledge, or recklessness” with respect to the
consequences of using force. 579 U. S., at ___, ___, n. 4
(slip op., at 6, 8, n. 4).
To understand the ordinary meaning of the phrase
“use of physical force against the person of another,” first
consider that the criminal law ordinarily imposes criminal
liability when the defendant acts with intent, knowledge, or
recklessness as to the consequences of his actions. A person acts
intentionally (or said otherwise, purposefully) with respect to the
harmful consequences of his actions if he has those consequences as
his “conscious object.” Model Penal Code §2.02(2)(a)(i) (1985). A
person acts knowingly with respect to the harmful consequences of
his actions if he is “aware that it is practically certain that his
conduct will cause” those consequences.
Id.,
§2.02(2)(b)(ii). And a person acts recklessly “when he consciously
disregards a substantial and unjustifiable risk” that his conduct
will result in harm to another person.
Id., §2.02(2)(c).
The line between knowing and reckless crimes is
thin. The difference between (i) conduct with knowledge as to the
consequences on the one hand and (ii) conduct with recklessness as
to the consequences on the other hand is that the risk of harm
associated with knowledge is somewhat higher than the risk of harm
associated with recklessness. In particular, to act with knowledge
that harm will occur, a defendant must know that harm is
“practically certain” to occur.
Id., §2.02(2)(b)(ii). To act
with recklessness as to whether harm will occur, a defendant need
not know with practical certainty that harm will occur—but he still
must
know that he is disregarding a substantial and
unjustifiable risk that harm will occur.
Id., §2.02(2)(c).
In other words, he must make a “deliberate decision to endanger
another.”
Voisine, 579 U. S., at ___ (slip op., at 7).
As has long been recognized, the difference between knowledge and
recklessness as to the consequences of one’s actions is one of
degree, not of kind.[
9]
Reckless conduct is not benign. Reckless conduct
“involves conscious risk creation,” Model Penal Code §2.02, Comment
3, p. 236 (1985)—a “deliberate decision to endanger another,”
Voisine, 579 U. S., at ___ (slip op., at 7). And a
person who engages in, for example, reckless assault or reckless
homicide generally injures or kills another person.[
10]
Because the line between knowledge and
recklessness can be thin and because reckless crimes such as
reckless assault and reckless homicide involve a “deliberate
decision to endanger another” that results in injury or death to
another person,
ibid., the criminal law ordinarily does not
draw the line for criminal liability between intent and knowledge
on the one hand and recklessness on the other. On the contrary, as
the Model Penal Code explains, “[n]o one has doubted” that a
reckless mental state is “properly the basis for criminal
liability.” §2.02, Comment 4, at 243; see generally Turner, The
Mental Element in Crimes at Common Law, 6 Camb. L. J. 31
(1936).
Recognizing that basic principle, the Model
Penal Code establishes recklessness as the default minimum
mens
rea for criminal offenses when a mental state is not specified.
§2.02, Comment 5, at 244. If a more culpable mental state, such as
intent or knowledge, is required for a criminal offense, “it is
conventional to be explicit.”
Ibid. Keep that last sentence
in mind when we return to ACCA’s text.
Like the Model Penal Code, many States establish
recklessness as a default minimum
mens rea for criminal
offenses.[
11] And like the
Model Penal Code, most States’ criminal laws in 1986 provided (and
today still provide) that recklessness as to the consequences of a
defendant’s conduct often suffices to impose criminal liability,
including as to assault and homicide. See,
e.g., Brief for
United States 19–20, and nn. 4–5 (state reckless assault statutes);
2 LaFave, Substantive Criminal Law §15.4(a), and p. 712, n. 19
(2018) (manslaughter). As of 1986, when Congress amended ACCA to
include the use-of-force clause, 28 States had reckless assault
statutes, and more than 30 States had statutes that covered some
form of reckless homicide. See Brief for United States 19–21, and
nn. 4–7.
Importantly, nothing in ACCA’s text or context
(or its history, for that matter) states or even hints that
Congress sought to exclude reckless offenses against the person,
such as reckless assault and reckless homicide, from the
use-of-force clause. Recall that the Model Penal Code says that “it
is conventional to be explicit” when a legislature wants to exclude
reckless offenses from criminal liability. §2.02, Comment 5, at
244. ACCA contains no such explicit language excluding reckless
offenses. The text of ACCA should not be read to
silently
exclude reckless offenses such as reckless assault and reckless
homicide.[
12]
In short, in enacting ACCA, “Congress must have
known it was sweeping in some persons who had engaged in reckless
conduct.”
Voisine, 579 U. S., at ___ (slip op., at 8)
(citing
United States v.
Bailey, 9 Pet. 238, 256
(1835) (Story, J.)).
Consistent with those background principles of
mens rea, the ordinary meaning of the phrase “use of
physical force against the person of another” in ACCA encompasses
reckless offenses such as reckless assault or reckless
homicide.
The plurality today acknowledges that the phrase
“use of physical force” would include reckless offenses. But
according to the plurality, ACCA’s phrase “use of physical force
against the person of another” does not include reckless offenses.
To distinguish the two, the plurality emphasizes the word
“against.” As the plurality acknowledges, however, the word
“against” is often defined to mean “ ‘mak[ing] contact
with.’ ”
Ante, at 8. That is the logical meaning of
“against” in the context of ACCA’s use-of-force clause, and that
meaning would encompass reckless assaults and reckless
homicides.
The plurality disagrees, and stresses that the
word “against” in isolation can mean
either “ ‘in
contact with’ ”
or “ ‘[i]n opposition to,’ ”
depending on context.
Ante, at 9. The plurality contends
that the meaning of “against” in the context of the phrase “use of
physical force against the person of another” carries the word’s
“oppositional” definition and thus excludes reckless
offenses.[
13]
The plurality chooses the “in opposition to”
definition because it says, in essence, that it would be incoherent
or gibberish to say that someone
recklessly used force
against another person. But the plurality is wrong about that. As a
matter of ordinary meaning, it is perfectly natural to say that
someone
recklessly used force against another
person.[
14] State and
federal reporters, for example, are replete with references to
individuals recklessly using force against others. See,
e.g., Neil v.
Warden, Noble Correctional
Inst., 2020 WL 489326, *30 (SD Ohio, Jan. 30, 2020) (“The
indictments also charged that in attempting or committing a theft
offense or in fleeing immediately after the attempt or offense,
appellant recklessly used or threatened the immediate use of force
against another”).[
15]
Most tellingly, if one wants to find a really
good example of the ordinary meaning, look no further than the
Court’s opinion in
Voisine five years ago. There, the Court
stated twice in its opinion—in the first and last paragraphs—that
the use-of-force statute at issue there covered offenses where an
individual
recklessly used physical force “against a
domestic relation.” 579 U. S., at ___ (slip op., at 12); see
also
id., at ___ (slip op., at 1). The
Voisine Court
found it entirely ordinary to employ the phrase “ ‘use
. . . of physical force’ against a domestic
relation”—in other words, use of physical force against another
person—to describe reckless assaults.
Id., at ___ (slip op.,
at 12).
If the plurality today were correct that a use
of force “against” another can only be intentional or knowing, then
the Court in
Voisine surely would not have adopted the
exact formulation of recklessly using force “against a
domestic relation.”
Res ipsa loquitur.
The plurality today simply shrugs off the
language from
Voisine.
Ante, at 22–23, n. 9. But
the plurality cannot rewrite ordinary meaning. And as
Voisine’s choice of language demonstrates, the ordinary
meaning of the phrase “use of physical force against the person of
another,” such as against a domestic relation, easily encompasses
reckless offenses, including reckless assault and reckless
homicide. (More on
Voisine later.)
More generally, the plurality’s linguistic
efforts to seize on the word “against” to scale back ACCA do not
make a lot of sense. Consider two points. First, a use of force
must be against someone or something. And second, as
Voisine
stated and Borden acknowledges, you can
recklessly use
force. Put those two points together and the resulting conclusion
is irrefutable: One can recklessly use force against the person of
another (or against the property of another). As relevant here, the
ordinary meaning of the phrase “use of physical force against the
person of another” thus covers reckless offenses such as reckless
assault and reckless homicide.
Lest there be any doubt, keep in mind that we
are talking about reckless offenses such as reckless assault or
reckless homicide where a defendant made a
deliberate
decision to endanger another by using force,
and as a result
injured or killed someone. Applying ordinary meaning and
employing a modicum of common sense, one would say that such a
defendant used force against the victim. If an individual fires a
gun recklessly at a house and injures someone inside, that
individual has used force against the victim. If an individual
recklessly throws bricks off an overpass and kills a driver passing
underneath, that individual has used force against the victim. If
an individual recklessly drives 80 miles per hour through a
neighborhood and kills a child, that individual has used force
against the child. It defies common sense and the English language
to suggest otherwise.
To appreciate the ordinary meaning of the phrase
“use of physical force against the person of another,” look also at
some of the cases cited by the plurality today. See
ante, at
18. In
People v.
Hall, a highly experienced skier
careened down a slope at dangerously high speeds, out of control,
until he crashed into an unsuspecting skier. See
999 P.2d 207 (Colo. 2000). The “force of the impact” when Hall
collided with the victim was so great that it “fractured the
thickest part of the victim’s skull” and caused traumatic brain
injuries, resulting in the victim’s death.
Id., at 211.
The fleeing shoplifter in
Craver v.
State leapt over the second-floor railing in a mall during
normal business hours, while people were milling about in the area
below. See 2015 WL 3918057, *1 (Tex. Crim. App., June 25, 2015).
The shoplifter landed directly on top of an elderly woman, breaking
her back.
Id., at *2.
And in
Seaton v.
State, a police
officer blew through a red light without braking or activating his
lights or sirens, collided with another car at a speed of about 100
miles per hour, ricocheted into another person who was standing
nearby, and killed that bystander. See 385 S.W.3d 85, 88 (Tex.
Crim. App., 2012).
All of those offenses entail the use of physical
force
against another person. True, the skier who crashed
into an innocent bystander on the slopes did not intend or know
with practical certainty that he would hit that bystander with such
force that it would crack his skull. The shoplifter who vaulted
himself over a second-floor railing may not have intended or known
with practical certainty that he would slam into an unsuspecting
shopper below. And the officer who drove through the red light at
100 miles per hour may not have intended or known with practical
certainty that he would lose control and kill another person.
But the defendants in those cases did not merely
“pay insufficient attention to the potential application of force.”
Ante, at 11. Instead, each of those defendants acted
recklessly and thus made “a deliberate decision to endanger
another.”
Voisine, 579 U. S., at ___ (slip op., at 7).
Each of them consciously disregarded the obvious dangers that their
volitional conduct—high-speed skiing, jumping off a second-floor
railing, or speeding at 100 miles per hour in a car without lights
or sirens—posed to anyone unfortunate enough to cross their paths.
See
id., at ___ (slip op., at 6). Each of those defendants
knew that the people around them would have to be really lucky to
get out of the way. And in ordinary parlance, each of those
defendants used force against their victims when they made physical
contact with those victims as a direct result of their
reckless behavior—that is, of their deliberate decision to endanger
another.
* * *
To sum up, the plurality’s reading of the
statutory phrase “against the person of another” fails for two
alternative and independent reasons. First, that phrase is a term
of art that limits the category of offenses covered by ACCA’s
use-of-force clause to those involving force against the person
rather than against property. It does not serve as a roundabout way
of heightening the
mens rea requirement for violent felonies
to intent or knowledge. Second, and in the alternative, even if the
phrase “against the person of another” is not a term of art, the
ordinary meaning of that phrase encompasses reckless offenses such
as reckless assault and reckless homicide.[
16]
II
All of that is more than enough to resolve
this case. But in addition to all of that, the Court’s recent
precedent in
Voisine v.
United States convincingly
demonstrates that ACCA covers reckless offenses such as reckless
assault and reckless homicide.
As noted above, the Court in
Voisine
concluded that the phrase “use of physical force” in a similarly
worded statutory provision encompasses reckless offenses, as well
as intentional or knowing offenses. 579 U.S. 686 (2016).
Voisine established two key points. First,
Voisine
confirmed that reckless offenses such as reckless assault and
reckless homicide entail the use of physical force against another
person—there, against a domestic relation or victim. Second,
contrary to the plurality’s analysis today,
Voisine
explained that the Court’s prior decision in
Leocal v.
Ashcroft,
543 U.S. 1
(2004), meant simply that
negligent offenses do not involve
the use of physical force for purposes of statutes such as
ACCA.
First,
Voisine confirmed that
reckless offenses involve the use of physical force against another
person—in that case, against a “domestic relation” or “victim.” In
Voisine, the Court addressed a subsection of §922(g) that
bars individuals from possessing firearms if they have been
convicted of a misdemeanor crime of domestic violence. See 18
U. S. C. §922(g)(9). The statute defines “misdemeanor
crime of domestic violence” as a misdemeanor that “has, as an
element, the use or attempted use of physical force” and was
committed against a “victim” who was in a domestic relationship
with the defendant. §921(a)(33)(A); see also
Voisine, 579
U. S., at ___ (slip op., at 1).[
17]
The question in
Voisine was whether that
statutory definition “applies to reckless assaults, as it does to
knowing or intentional ones.”
Id., at ___ (slip op., at 4).
The Court held that the statute applied to reckless assaults.
The Court in
Voisine began by describing
bedrock criminal law principles. Pointing to the Model Penal Code,
the Court explained that a person acts recklessly with regard to
the consequences of his actions if he “ ‘consciously
disregard[s]’ a substantial risk that the conduct will cause harm
to another.”
Ibid. (quoting Model Penal Code §2.02(2)(c)).
The Court stated that even though such a person does not intend or
know to a practical certainty that harm will result, he nonetheless
makes “a deliberate decision to endanger another.”
Voisine,
579 U. S., at ___ (slip op., at 7). And the Court noted that
recklessness as to the consequences of one’s actions ordinarily
suffices for criminal liability.
The Court then concluded that the phrase “use of
physical force” in §921(a)(33)(A) does not require that a defendant
intend or
know that his conduct will cause harm.
Instead, it is enough that he
recklessly employs force—that
is, acts in “conscious disregard” of a “substantial risk of causing
harm.”
Id., at ___ (slip op., at 6). For example, a man who
“throws a plate in anger against the wall near where his wife is
standing” has used force against his wife even if the man “did not
know for certain (or have as an object)” that “a shard from the
plate would ricochet and injure his wife.”
Ibid. It suffices
that the man “recognized a substantial risk” that his forceful act
would harm his wife.
Ibid. That example, the Court
explained, illustrated that the statute was “indifferent as to
whether the actor has the mental state of intention, knowledge, or
recklessness with respect to the harmful consequences of his
volitional conduct.”
Ibid.
In
Voisine, to have committed a
qualifying misdemeanor crime of domestic violence, the defendant
must have used force against a “victim,” to use the statute’s term,
often against the defendant’s spouse or partner. As the
Voisine Court stated, reckless assault in the domestic
violence context entails “the ‘use . . . of physical
force’
against a domestic relation” even though a defendant
who acts recklessly does not intend or know to a practical
certainty that his use of force will harm that domestic relation.
Id., at ___ (slip op., at 12) (emphasis added). In other
words, the Court agreed that a reckless assault entails the use of
physical force
against the person of another (there,
“against a domestic relation” or “victim”).
Voisine’s conclusion applies equally to
ACCA’s violent felony definition. The two definitions share
critical features. Both definitions apply in the context of
§922(g)’s ban on possession of firearms by individuals convicted of
certain offenses. Both definitions apply to offenses that have as
an element the “use of physical force.”
The only distinction between those two
definitions is that ACCA employs the phrase “use of physical force
against the person of another” while §921(a)(33)(A) employs the
phrase “use of physical force” and then makes clear that force must
be used against a “victim” who is a domestic relation. But that
distinction makes no difference for
mens rea purposes. The
Court in
Voisine took as a given that the object of the
reckless conduct would be another person—the “victim” as the
statute describes it. See
id., at ___, ___, ___, ___, ___,
___ (slip op., at 1, 4, 7, 8, 9, 12). Indeed, given that
Voisine involved a domestic violence statute, it would have
been unnecessary or even redundant to add the words “against the
person of another” to the statute. After all, a domestic violence
offense, such as assault, is necessarily an offense against the
person of another. Recognizing that reality, the
Voisine
Court explicitly stated that the “federal ban on firearms
possession applies to any person with a prior misdemeanor
conviction for the ‘use . . . of physical force’
against a domestic relation.”
Id., at ___ (slip op.,
at 12) (quoting §921(a)(33)(A); emphasis added); see also
id., at ___ (slip op., at 1).
Contrary to what the plurality today seems to
think,
Voisine did not create some imaginary world where one
could recklessly use force, but one could not recklessly use force
against another person. On the contrary,
Voisine explicitly
recognized that one could recklessly use force “
against a
domestic relation”—that is, against another person.[
18]
Voisine alone should have made this case
very straightforward. In the wake of
Voisine, most Courts of
Appeals to consider the issue certainly thought it was. They
responded to
Voisine by applying its analysis to ACCA’s
violent felony definition.[
19] As Chief Judge Sutton cogently explained in relying
on
Voisine to interpret the phrase “use of physical force
against the person of another”: “
Voisine’s key insight is
that the word ‘use’ refers to ‘the act of employing something’ and
does not require a purposeful or knowing state of mind. That
insight does not change if a statute says that the ‘
use of
physical force’ must be ‘against’ a person, property, or for that
matter anything else. . . . Sometimes the simplest
explanation is the best explanation.”
United States v.
Verwiebe, 874 F.3d 258, 262–263 (CA6 2017) (citations
omitted).
But today, the plurality tries to disappear
Voisine’s use of the phrase “against a domestic relation”
from the U. S. Reports. Seeking to erase that phrase from
Voisine with a footnoted “
mea culpa,” the plurality
today concludes that the additional phrase “against the person of
another” in ACCA means that ACCA’s use-of-force clause does not
cover reckless crimes, even though the statute at issue in
Voisine did.
Ante, at 20–23, and n. 9. The
plurality’s attempt to rewrite
Voisine does not persuade. As
noted above,
Voisine held that reckless offenses such as
reckless assault and reckless homicide entail the “use of physical
force,” and the
Voisine opinion further explained that those
reckless offenses entail the use of physical force against the
person of another—namely, “against a domestic relation” or
“victim.”
Second, as
Voisine fully
explained, the Court’s prior decision in
Leocal concluded
only that
negligent offenses do not involve the use of
physical force for purposes of ACCA.
Leocal, 543 U. S.,
at 9, 13; see also
Voisine, 579 U. S., at ___ (slip
op., at 7).
Leocal addressed whether a
driving-under-the-influence offense that required only a
negligent mental state fell within §16(a)’s definition of
“crime of violence.” The
Leocal Court held that it did not.
The phrase “use . . . of physical force against the
person or property of another,” the Court reasoned, is “most
naturally” read to suggest “a higher degree of intent than
negligent or merely accidental conduct.” 543 U. S.
, at
9 (internal quotation marks omitted). As the Court explained:
“While one may, in theory, actively employ
something in an
accidental manner, it is much less natural to say that a person
actively employs physical force against another person by
accident.”
Ibid.
The
Leocal Court took care, however, to
reserve the question we confront today—namely, whether offenses
requiring “proof of the
reckless use of force against the
person or property of another” would qualify under a statutory
definition like §16(a).
Id., at 13 (emphasis in
original).
As
Voisine later explained, the critical
mens rea dividing line in statutes requiring the use of
force is the line “between accidents and recklessness”—a
distinction that “
Leocal itself recognized.” 579 U. S.,
at ___ (slip op., at 7). Accidents or negligence do not involve the
use of force because such conduct is not volitional.
Ibid. But reckless behavior, like throwing a plate against a
wall or firing a gun at a house, is different and does involve the
use of force. After all, the “harm such conduct causes is
the result of a deliberate decision to endanger another—no more an
‘accident’ than if the ‘substantial risk’ were ‘practically
certain.’ ”
Ibid.
As a matter of history, theory, and practice in
criminal law, the line drawn by
Voisine and
Leocal
between recklessness and negligence is much more salient than the
line drawn by the plurality today between knowledge and
recklessness. An individual who consciously disregards a
substantial risk of a harmful result has a culpable state of mind
and has made a deliberate decision to endanger another, even if it
is not practically certain the harmful result will occur. And for
that reason, to reiterate, the Model Penal Code and most States
draw the ordinary line of criminal culpability between recklessness
and negligence, not between knowledge and recklessness.
Rather than acknowledge
Leocal’s narrow
holding on negligence as distinct from recklessness, knowledge, and
intent, the plurality today focuses on
Leocal’s observation
that the “critical aspect” of §16(a)’s “crime of violence”
definition is that it requires the “ ‘use . . . of
physical force
against the person or property of
another.’ ” 543 U. S.
, at 9 (quoting §16(a);
emphasis in original). By the plurality’s account today,
Leocal’s analysis of §16(a)’s “against” phrase—which was
missing from the statute at issue in
Voisine—confirms that
ACCA’s materially similar “against” phrase is the “critical text
for deciding the level of
mens rea needed.”
Ante, at
21–22 (internal quotation marks omitted).
But
Leocal never focused on the term
“against the person or property of another” in isolation. It
focused on the full phrase “use of physical force against the
person or property of another.” 543 U. S., at 9. And
Leocal said that negligence does not entail such a use of
force.
Indeed, the Court in
Voisine already made
that same point about
Leocal.
Voisine recognized that
the statute in
Leocal, like the “similarly worded” statute
in
Voisine, “hing[ed] on the ‘use’ of force.” 579
U. S., at ___, n. 4 (slip op., at 8, n. 4). The
Voisine Court distinguished
Leocal solely on the
ground that an accident or negligence cannot be considered an
“ ‘active employment’ ” of force, whereas reckless
assault does entail an active employment of force. 579 U. S.,
at ___ (slip op., at 7). As Chief Judge Sutton correctly pointed
out,
Voisine “tellingly placed no weight on the absence of
‘against the person or property of another’ ” in
distinguishing the statute at issue in
Voisine from the
statute at issue in
Leocal.
Verwiebe, 874 F. 3d,
at 263. All of
Voisine’s lengthy analysis of
Leocal
would have been entirely unnecessary if the
Voisine Court
actually thought that the phrase “against the person or property of
another” in the
Leocal statute distinguished the statute in
Leocal from the statute in
Voisine.
Put simply, if the phrase “against the person
. . . of another” from the statute in
Leocal were
actually the “Rosetta Stone” of
mens rea as the plurality
today seems to think,
Voisine would have mentioned that
point.
Verwiebe, 874 F. 3d, at 263. But that
distinction is nowhere to be found in
Voisine. For
mens
rea purposes,
Voisine treated a statute that covered the
“use of physical force” the exact same as a statute that covered
the “use of physical force against the person of another.”
The plurality’s double-barreled effort today to
(i) erase
Voisine’s use of the phrase “against a domestic
relation” and also (ii) sweep away
Voisine’s analysis of
Leocal is something to behold. In my view, the plurality’s
opinion today cannot be squared with what the Court stated just
five years ago in
Voisine.
If this Court were to faithfully apply
Voisine’s language and reasoning to this case, as almost all
courts of appeals to consider the issue have done in the wake of
Voisine, that would be the end of the matter. The
plurality’s decision to rewrite
Voisine today is not
convincing, especially when considered together with the other
textual arguments in favor of the Government’s position
here.[
20]
III
To support its analysis, the plurality also
relies on ACCA’s “context and purpose.”
Ante, at 16. That
argument is likewise unpersuasive, in my respectful view.
Start with context. The plurality focuses on the
supposed ordinary meaning of the term “violent felony” in
isolation. The plurality maintains that ACCA’s definition of
violent felony should be construed to “mark out a narrow category
of violent, active crimes.”
Ibid. (internal quotation marks
omitted).
To begin with, when a statute explicitly defines
a term, we generally follow that statutory definition. See
Digital Realty Trust, Inc. v.
Somers, 583 U. S.
___, ___ (2018) (slip op., at 9). In ACCA, Congress defined the
term “violent felony” to include offenses that involve the “use of
physical force against the person of another.” And as explained
above, that definition encompasses reckless offenses like reckless
assault and reckless homicide.
Moreover, reckless assaults and reckless
homicides
are violent crimes, as a matter of ordinary
meaning. Recklessly firing a weapon and injuring an unsuspecting
victim is violent. Recklessly throwing bricks off an overpass and
killing a driver passing underneath is violent. Recklessly driving
80 miles per hour through a neighborhood and killing a child is
violent.
The plurality also refers to the phrase “armed
career criminal” (the statutory title) in a way that seems to
suggest that an ACCA defendant’s predicate violent felonies must be
committed with firearms. See
ante, at 17, 23. That is
incorrect. The three predicate felonies must be “violent” as
defined in the statute but can be committed with or without
firearms. Contrary to the plurality’s intimations, the statute
penalizes “career criminals” who then unlawfully arm themselves
with firearms. The plurality’s subtle reconfiguration of the
statutory title for contextual support is off base.
The plurality’s related reliance on ACCA’s
supposed purpose is similarly misplaced. The plurality speculates
that Congress designed ACCA to cover those offenders “who, when
armed, ‘might deliberately point the gun and pull the
trigger.’ ”
Ante, at 17 (quoting
Begay v.
United States,
553 U.S.
137, 145–146 (2008)). But even assuming that was Congress’s
only goal in enacting ACCA (recall that ACCA also covers
those whose predicate offenses were serious drug crimes), the
statute expressly defines the offenders who fit into that dangerous
category—namely, those who have been convicted of three violent
felonies and then unlawfully possess firearms. Congress’s goal of
preventing further violence by recidivist violent felons does not
support drawing a distinction between reckless assault and knowing
assault, or between reckless homicide and knowing homicide.
The plurality also says that Congress did not
seek to ensnare low-level or ordinary criminals. True. But again,
ACCA’s 15-year mandatory minimum sentence is triggered only after a
defendant is convicted of not one, not two, but
three
violent felonies committed on separate occasions—and then proceeds
to commit a
fourth felony by unlawfully possessing firearms.
Such repeated violent conduct is not the stuff of low-level or
ordinary criminals. Even assuming the plurality’s premise that a
driver who recklessly kills a pedestrian or a parent who recklessly
inflicts abuse on her children is not dangerous the first time
around—a doubtful premise that would be news to many victims—that
assumption surely falls apart after the second and third reckless
felony convictions. At that point, the individual has demonstrated
a consistent willingness to deliberately engage in dangerous
behavior that poses an obvious risk of physical harm to others. And
someone who has been convicted of three reckless assaults or
homicides committed on different occasions—and then unlawfully
possesses firearms—is not a low-level or ordinary criminal, but is
someone who Congress might have reasonably feared would commit
further violence.
The plurality expresses particular concern over
the notion that interpreting ACCA to cover reckless offenses would
sweep in ordinary reckless driving offenses, like “running a stop
sign or veering onto the sidewalk.”
Ante, at 18. But the
plurality does not cite a single case where a reckless driving
offense not involving injury to others has been counted as an ACCA
predicate. That is not surprising because routine reckless driving
statutes often do not require injury to others and thus would not
qualify as a “use of physical force” under ACCA. It is only when
the reckless driver causes harm to another and is convicted of an
offense akin to reckless assault or reckless homicide that the
offense typically would come within ACCA.
Notably, in citing what it implies are benign
reckless driving offenses, the plurality fails to mention that the
driver who blew through a stop sign in
State v.
Gillon collided with another vehicle, killing one person and
injuring two others. See 15 S.W.3d 492, 496–497 (Tenn. Crim. App.
1997). And the driver who erratically veered onto a sidewalk in
State v.
Graham drove “straight toward” another
vehicle and crashed into it, leaving the driver of the vehicle
“lying face first outside of the passenger side of his vehicle”
“screaming in pain.” 2008 WL 199851, *2 (Tenn. Crim. App., Jan. 24,
2008). The accident left the victim “unable to walk for three
months” after the crash.
Ibid. As with the other sanitized
examples the plurality cites today, it strains credulity to suggest
that the drivers in either of those cases did not use force
against their victims—or that they could not fairly be
considered “career criminals” if convicted of those kinds of
violent felonies on
three separate occasions.
In discussing context and purpose, the plurality
also tries to further distinguish
Voisine by saying that
Voisine involved a prior offense of domestic violence,
whereas this case involves prior offenses of assault.
Ante,
at 23. But Congress wanted to prohibit thrice-convicted violent
criminals from unlawfully possessing firearms at least as much as
it wanted to prohibit misdemeanor domestic violence offenders from
unlawfully possessing firearms.
Voisine cannot be
distinguished on purposive grounds.
Finally, in discussing context and purpose, the
plurality alludes several times to the 15-year mandatory minimum
sentence in ACCA. (The mandatory minimum seems to loom very large
as an influence on the plurality’s overall analysis here.) But that
mandatory minimum sentence comes into play only after four separate
felony convictions, three of them for violent felonies and a fourth
for unlawfully possessing firearms. ACCA’s mandatory minimum
sentence is not a basis for interpreting the statute contrary to
its best reading. Moreover, Congress is attuned to the issue and
has taken many steps in recent years to recalibrate sentencing,
address mandatory minimums, and target those who most deserve
substantial sentences. It is not our role to rewrite Congress’s
sentencing laws just because we might disagree with Congress or
think that Congress is not moving quickly enough to enact new
sentencing laws.
In short, ACCA’s context and purpose, properly
read, strongly support what the statutory text and precedent
already establish: An individual who commits three reckless
assaults or homicides and then unlawfully possesses firearms falls
well within the class of people that ACCA encompasses.
IV
The Court’s decision today will generate a
variety of serious collateral effects that further underscore the
implausibility of the plurality’s statutory interpretation.
First, because the States define reckless
assault and reckless homicide to cover a range of conduct, the
Court’s decision will exclude from ACCA many defendants who have
committed serious violent offenses. Consider just a few examples,
but keep in mind that there are thousands more:
During the course of a fight, a defendant shot
another man in the chest and killed him. A jury found the defendant
guilty of second-degree reckless homicide.
State v.
Jackson, 2012 WL 4799459, *1 (Wis. App., Oct. 10, 2012).
A defendant had been drinking in a parking lot
with several others and then attacked another person with a knife.
The knife attack resulted in a “ten-inch long, ‘gaping’ laceration”
that “went down to the depth of the victim’s ribs, through two
layers of muscle and through his interior abdominal wall.” The
defendant was convicted of reckless aggravated assault.
State v.
Farrar, 2002 WL 560959, *1–*2 (Tenn. Crim.
App., Apr. 16, 2002).
At a party, a defendant picked up a friend’s
gun, pointed it directly at another person’s head, and pulled the
trigger. The evidence adduced at trial established that the
defendant had recklessly disregarded a known risk that the gun was
loaded. The defendant was convicted of reckless homicide.
State v.
Gough, 2009–Ohio–322, 2009 WL 180298, *1–*2
(App., Jan. 26, 2009).
A defendant savagely beat his victim “without
provocation,” causing the victim to suffer “hearing loss, missing
teeth, impaired vision and impaired memory.” The defendant was
convicted of reckless aggravated assault.
State v.
McAmis, 2010 WL 2244124, *4 (Tenn. Crim. App., June 4,
2010).
In each of the above examples, the defendant’s
mental state for the state-law offense was determined to be
recklessness. Under the Court’s decision today, however, not one of
those defendants committed a “violent felony” for purposes of ACCA
because they supposedly did not commit an offense that necessarily
entailed the use of force
against the person of another.
And it gets worse. Under the Court’s decision,
even second-degree murder and some forms of manslaughter may be
excluded from ACCA. That is because, in many States, some forms of
second-degree murder and manslaughter do not require intent or
knowledge. The idea that those offenses would fall outside of
ACCA’s scope is, as one judge aptly put it, “ ‘glaringly
absurd.’ ”
United States v.
Begay, 934 F.3d
1033, 1047 (CA9 2019) (N. R. Smith, J., dissenting in part).
Something has gone badly astray when this Court is suggesting that
second-degree murder and manslaughter might not involve the “use of
physical force against the person of another.”[
21]
Second, the Court’s decision will exclude
even some convictions for intentional and knowing assaults. That is
because several States criminalize felony assault in a single,
indivisible provision that can be satisfied by intent, knowledge,
or recklessness.[
22] Because
courts use the categorical approach when applying ACCA’s violent
felony definition, the Court’s decision today will thus exclude
many intentional and knowing felony assaults from those States.
Consider just one example. In
United
States v.
Esparza-Herrera, a defendant broke into the
house of a woman he had previously dated, tied her up, and beat her
over a four-hour period, leaving blood on her hands and face, her
eyes swollen shut, and bite marks all over her body. 557 F.3d 1019,
1021, n. 2 (CA9 2009). The defendant was convicted under a
state statute that proscribed “ ‘intentionally, knowingly or
recklessly’ ” causing “ ‘temporary but substantial
disfigurement.’ ”
Id., at 1021. Under the Court’s
decision today, that offense would not qualify as a violent felony
under ACCA.
Third, after today’s decision, attempted
and threatened assaults and homicides will be covered under ACCA as
violent felonies. But
actual assaults and
actual
homicides that were committed recklessly will not be covered under
ACCA. It seems incongruous to conclude that ACCA covers attempts or
threats to injure others that never get completed or carried out,
but does not cover situations where an individual carries through
with reckless conduct and leaves a victim in a hospital or
graveyard.
As those points indicate, the Court’s decision
today will undermine Congress’s sentencing policy. In particular,
today’s decision will mean that some defendants otherwise subject
to ACCA will leave prison much earlier than Congress dictated, or
avoid ACCA altogether.[
23]
To some, that may seem costless or even beneficial. Indeed, the
plurality, in places, seems to doubt the use of the 15-year
mandatory minimum sentence—even for someone convicted of three
separate violent felonies and then a fourth for unlawfully
possessing firearms. But Congress, not this Court, sets national
sentencing policy for violent crimes. Today’s decision overrides
Congress’s policy judgment about the risk posed by serial violent
felons who unlawfully possess firearms. And today’s decision will
have significant real-world consequences. After all, as the
U. S. Sentencing Commission recently reported, there is a very
high rate of violent crime recidivism for ACCA defendants released
from federal prison. According to that Sentencing Commission
report, 59% of ACCA defendants released between 2009 and 2011 were
re-arrested within eight years of their release from federal
prison, most commonly for assault and most commonly within 18
months of release. See Federal Armed Career Criminals: Prevalence,
Patterns, and Pathways 43–45 (2021). There is no reason to believe
that the would-be ACCA defendants who will receive a lighter
sentence after the Court’s decision today will produce
significantly different recidivism statistics. Those alarming
statistics cannot be ignored, and they portend some of the human
costs of the Court’s erroneous decision today.
* * *
In sum, the text of ACCA’s use-of-force clause
encompasses reckless offenses, such as reckless assault and
reckless homicide. Contrary to the plurality’s conclusion today,
the phrase “against the person of another” reflects a centuries-old
term of art for classifying crimes and has zero to do with
mens
rea. Even setting aside that longstanding usage, the
plurality’s interpretation of the phrase “use of physical force
against the person of another” fails as a matter of ordinary
meaning and precedent. I respectfully dissent.