David Holman has a helpful new article exploring the mess that has become the Armed Career Criminal Act jurisprudence in the wake of Begay v. United States. (I’ve blogged about this unfolding jurisprudence several times, e.g., here and here.)  The ACCA, of course, imposes a fifteen-year mandatory minimum for felons in possession of a firearm who have three or more prior convictions for a “violent felony” or a serious drug offense. It is the definition of “violent felony” that has occasioned so much litigation and so many unsatisfying judicial decisions over the past couple of years.  I’m glad to see David’s article because I think legal scholars have not been paying nearly enough attention to recent developments in this important area of federal criminal law.

I think David is correct to trace the jurisprudential difficulties to the tension between two lines of Supreme Court decisions.  

The first line, exemplified by Taylor v. United States, 495 U.S. 575 (1990), requires the “categorical” approach to determining whether a prior conviction qualifies: based on its elements, an offense is or is not an ACCA predicate without regard to the specifics of how a defendant perpetrated the offense.  The second line, exemplified by Chambers v. United States, 129 S. Ct. 687 (2009), indicates that courts should determine whether a prior felony was violent based on whether that type of felony ordinarily involves violence.  This inquiry contemplates that judges will go beyond the bare elements of the offense and draw on statistics, personal experience, or common-sense intuitions.  Adding to the difficulty is Begay, which adopted a vague mens rea requirement that was not very well anchored in the statutory language.

Here are David’s thoughtful recommendations for lower courts struggling with these difficulties, particularly as they relate to the ACCA’s “residual clause,” which extends the definition of “violent felony” to any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”:

First, courts should narrowly construe Begay’s mens rea holding and read it as excluding only strict liability crimes from the residual clause while including crimes of negligence and recklessness. Second, courts should readBegay’s “aggressive” requirement as a rhetorical flourish without any meaningful distinction from “violent.” Third, despite Begay’s apparent invitation to do otherwise, courts should strictly follow the categorical approach and apply the residual clause to only those crimes with elements that require the underlying conduct be violent while excluding those crimes with elements that do not require violence or any mens rea.

David’s proposal is framed as advice to lower courts that are stuck with the Supreme Court precedent.  But I wonder how the Supreme Court itself might best clean up the mess it is has created.

I think a good first step would be for the Court to abandon the categorical approach, which seems inevitably to lead to many arbitrary distinctions based on the fine-grained parsing of criminal statutes that were not written with the ACCA in mind and that do not readily lend themselves to categorization under the Begay test.  Courts ought to be able to look through the formal crime of conviction to determine what defendants’ actually did — this is the only sensible way to accomplish what Congress intended through the ACCA, that is, the incapacitation of armed felons who have demonstrated their dangerousness through a prior course of violent crime.

The Court has resisted an actual-conduct test because of Sixth Amendment concerns — a sentencing judge should not be making findings of fact about a defendant’s prior conduct when those findings increase a defendant’s sentencing exposure.  There would indeed be a conflict between an actual-conduct test and the Sixth-Amendment purism of cases like Apprendi v. New Jersey.  On the other hand, the Court’s most recent pronouncement in this area, Oregon v. Ice, indicates that the Court may be shifting to a more flexible, pragmatic approach.  In any event, there is a simple solution to the Sixth Amendment dilemma: give defendants the right to a jury trial on their alleged ACCA predicates under the residual clause.  There would be some additional transaction costs associated with this, but probably not much — the ACCA issues would surely be resolved by plea agreement in the vast majority of cases.