Courthouse Steps Decision Teleforum: Borden v. United States

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to this Federalist Society Teleforum conference call. This afternoon, June 15, 2021, we have a special Courthouse Steps Decision Teleforum on a case called Borden v. United States. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert.

 

      We are very pleased to be joined this afternoon by Mr. Kent Scheidegger. He's the Legal Director and General Counsel at the Criminal Justice Legal Foundation. His longer bio can be found on our website. But in order to get right to the case and get to your questions, we'll go ahead and get started. So Mr. Scheidegger, thanks very much for being with us here today. I'll give the floor to you.

 

Kent Scheidegger:  Thank you. On June 10, the United States Supreme Court decided the case of Borden v. United States. The specific question was whether Borden's prior conviction for aggravated assault under a specific subsection of Tennessee law is a violent felony for the purpose of the Armed Career Criminal Act or ACCA. The proverbial person on the street would likely think it is a strange question to even ask. Of course, assault is one of the quintessentially violent crimes along with murder and rape. Yet, a fractured Supreme Court decided that a prior conviction will not be considered a violent felony for this purpose if, under the statutory definition of the crime, it is possible to commit the crime with a mental state of recklessness rather than purposefulness or knowing, regardless of how violent the actual crime really was.

 

      The ACCA was enacted in 1984 at a time when crime rates were much higher than they are today, and the public was demanded strong action. Possession of a firearm by a convicted felon is a federal offense, and Congress provided in the ACCA that there would be a 15-year mandatory minimum sentence for this crime if the defendant had three prior offenses for violent felonies. The statute provided three definitions by which a prior conviction could qualify as a violent felony. The one at issue, in this case, is that the crime, "Has as an element, the use, attempted use, or threatened use of physical force against the person of another." The statute also specifically included burglary, arson, and extortion, and it included, "Conduct that presents a serious potential risk of physical injury to another." That last clause unambiguously included crimes that are reckless rather than intentional as traditionally defined.

 

      However, after the Supreme Court struggled with that definition for years, it finally gave up and declared the clause void for vagueness in Johnson v. United States in 2015. One other precedent that is needed to understand the present case is Voisine v. United States in 2016. That case involved a slightly different statute that prohibited possession of a firearm by a person with a misdemeanor conviction of domestic violence. The definition of a misdemeanor crime of domestic violence required that the crime, "Has as an element, the use or attempted use of physical force." In the Voisine case, the Court held in an opinion by Justice Kagan that the use of force could include reckless as well as intentional offenses.

 

      The Model Penal Code defines four mental states: purposeful, knowing, reckless, and negligent. Generally, various criminal statutes punish bad acts committed with the first three mental states but not negligent acts unless the statute specifically includes them. Negligence is typically left to civil law. Under the Model Penal Code, a criminal statute that does not specify a mental state is deemed to include purposeful, knowing, and reckless offenses. This system of defining mental states, replacing the earlier confusion over the term intent, has been adopted in many states.

 

      In the present case, Charles Borden had three prior convictions for aggravated assault under Tennessee law. The Tennessee statute breaks out aggravated assault by different mental states, with recklessness being under a different subdivision than purposeful or knowing assaults. Two of Borden's priors were for the intentional type, and one was for the reckless type. Following the evident implication of the Voisine decision, the district court decided that all three qualified as violent felonies and sentenced him accordingly, and the court of appeals affirmed. In interpreting statutes of this type, the Supreme Court has followed what it calls a categorical approach. Under this approach, the Court looks only at the definition of a crime in the statute and asks, what is the least culpable conduct and mental state that could possibly qualify for a conviction under that statute?

 

      As the plurality says, "The facts of a given case are irrelevant." Borden's argument before the Supreme Court was that the statute, in this case, is distinguishable from the one in Voisine because it adds the phrase against the person of another, a phrase not found in the statute in Voisine. The government argued that against the person of another simply describes the object of the force and implies no mental element. As the dissent points out, classifications in criminal statutes have long used the phrase crimes against the person to distinguish violent crimes from property crimes, and violent crimes under that heading have always included crimes committed recklessly. There is no majority opinion in this case.

 

      The plurality opinion is by Justice Kagan, the author of the Voisine opinion, and she accepts the argument that phrase against the person implies a mental element, thereby distinguishing Voisine. The plurality first relied on a 2004 case, Leocal v. Ashcroft, which interpreted similar language to exclude crimes that were merely negligent but took no position on whether it excluded crimes committed recklessly. The plurality further contends that consideration in the statute's purpose requires excluding reckless offenses. At this point, the opinion becomes a bit surreal because it fails to mention that another cause of the same definition being interpreted expressly and unambiguously included reckless offenses. That clause is no longer operational because it was declared unconstitutionally vague in the Johnson case, but it would seem to preclude claiming with a straight face that Congress intended to exclude reckless offenses.

 

      In discussing what kinds of offenses would be included in the reckless mental state qualified for a violent felony, the plurality repeatedly refers to drunk driving even though the case before the Court involves aggravated assault. The plurality seems to paint the world of criminal law as cleanly distinguished between offenses committed purposely or knowingly on the one hand and those committed recklessly on the other. If that were the case, drawing the line between knowing and reckless might make more sense. In the real world, though, many definitions of crimes include all three mental states as alternatives which is why the Model Penal Code defined the default mental element the way it did. For example, if the evidence shows that A pointed a gun a B and pulled the trigger, it might not be possible to prove beyond a reasonable doubt whether the killing was intentional or reckless, but the law in most states makes the defendant guilty of murder either way. The Borden decision will exclude all such crimes for use as priors for the ACCA.

 

      Justice Thomas reluctantly provided the fifth vote to reverse the sentence. He said, "This case forces us to choose between aggravating a past error and committing a new one." He had dissented in the Voisine case and believed that the term use of force by itself excluded reckless offenses. Yet, he also dissented in the Johnson case and believed that the clause struck in that decision is constitutional and it would have included reckless offenses. The dissent notes it as somewhat anomalous, but a majority of the Court believes that reckless offenses are legitimately included in the statute. Yet, through this divide and conquer approach going clause by clause, they end up being excluded.

 

      There is another oddity between this case and Voisine, a person with an otherwise spotless record who commits a single misdemeanor act of reckless assault loses his right to bear arms for life and can be convicted of a crime for an act that is otherwise not only legal but a constitutional right. The other person who commits a felony assault causing much greater injury with the same mental state and who also has two other priors for unambiguously violent crimes cannot be sentenced as a career criminal.

 

      The narrowing of the ACCA becomes even greater when we consider that a great many criminal statutes punish both reckless and intentional acts under the same statute. The crime of murder, a violent crime if any crime is, can be committed in most states either with intent to kill or with extreme recklessness. It is only a matter of time before we have a case where the judgment for the prior offense does not specify which mental state was involved, and a federal district court will be forced to rule that murder is not a violent offense in that case. The ACCA is a very controversial statute. It is regarded by many to be far too harsh. No doubt there are many people who cheer the result in this decision regardless of how it was arrived at.

 

      It is difficult to read the plurality opinion without suspecting that the plurality shared that goal and backed in the reasoning to match. Eventually, Congress will need to revisit the whole area. Until it does, one of the government's strongest weapons against career criminals has been substantially blunted. Thank you, and we can open it to questions now.

 

Nick Marr:  Okay, great. Thanks very much. Let's open the floor for audience questions now. I see one caller in the queue right now. So --

 

Caller 1:  Hi, Kent. It's Peter. I'm wondering how much this case turns not on the prepositional phrase in terms of distinguishing Voisine. I know Kagan talked about the rain falling against the roof and all that.

 

Kent Scheidegger:  Yeah.

 

Caller 1:  But the real difference is that Voisine involved taking guns away from misdemeanants, and this case involved imprisoning violent felons. And it's no secret that sort of the two leading strategies for combating violence in this country are, among particularly those on the center-left, removing guns from the public, and among those on the center-right, increasing imprisonment for those who use them to commit crimes. And how much is that more than the particular grammar really the difference between this case and Voisine?  

 

Kent Scheidegger:  Reading the opinion, I do have to suspect that it was -- it is policy rather than actual parsing of the wording. The statute, as it was originally written, unambiguously included in the residual clause the aggravating -- the reckless offenses. It's not really plausible that Congress's language could be interpreted to have an intent to exclude them, and so I do think that the disagreement with the statute itself, which is a very harsh [inaudible 11:21], there's no doubt about it, weighed heavily in this decision.

 

Nick Marr:  Okay, great. Let's try to take our next questioner here. So pan to a question I had, while we're waiting if there are any other questions, is, one, is there anything particularly -- and you might have touched on this a little bit -- particularly surprising about the decision to you and how did it track with your expectations coming out of oral argument?

 

Kent Scheidegger:  Well, I didn't try to predict from oral argument. That's pretty dicey. I am a little surprised to see Justice Gorsuch joining the opinion. I might have thought that he might vote to affirm on other reasoning, but I was a little surprised and, frankly, disappointed that he would join what seems to me the very result-oriented analysis.

 

Nick Marr:  That's very interesting. Has he written previously on this topic?

 

Kent Scheidegger:  I haven't traced his opinions backward to see which ones, but most of the precedence involved here predates his joining the Court.

 

Nick Marr:  That makes sense.

 

Kent Scheidegger:  It would have [inaudible 12:34] for appeals if he had.

 

Nick Marr:  Well, Kent, I'll turn the floor back to you. We don't have any questions in the queue right now, but if one pops up, I will let you know. Either if there's things you didn't cover in the opening that you wanted to cover or if you'd like to offer some closing remarks and actually end a little bit early.

 

Kent Scheidegger:  Well, it's been a very eventful term. We have this case. We have the Jones case. And so there's lots of things to chew over regarding criminal law. We certainly have not seen the Court go uniformly in one direction. The defense won this side. The prosecution side won Jones. We certainly don't have a Court ruling monotonically for one side. It's coming down in various ways in various cases. I expect we'll see that going forward into the next term.

 

Nick Marr:  Very good. Okay. Well, we'll close out a little bit early this afternoon. Thank you very much, Mr. Kent Scheidegger, for the benefit of your valuable time and expertise this afternoon in covering this important decision. To our audience for calling in, thanks very much, and thanks for your good question. As always, keep an eye on your email and our website for announcements about upcoming Teleforum calls, Supreme Court coverage like this one, especially as we come to the end of the term here. We'll be covering all the cases that come down. So thank you all very much for joining us today. Until that next event, we are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.