Case No. 19-5410 | 6th Cir.
November 3, 2020
Preview by Kevin Coleman, Articles Editor
In 1984, Congress enacted the Armed Career Criminal Act (“ACCA”) in response to a decades-long increase in violent crime. The law targeted recidivists by imposing a fifteen-year mandatory minimum when a defendant with three prior convictions for serious drug offenses or violent felonies is convicted in federal court for unlawfully possessing a firearm. 18 U.S.C. § 924(e)(1) (2018). Under the ACCA, a “violent felony” includes “any crime punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use . . . of physical force against the person of another . . .” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). In Borden v. United States, the Supreme Court will decide whether this provision—known as the “elements clause”—applies to prior convictions for reckless, rather than knowing or intentional, conduct.
Charles Borden Jr. was arrested during a traffic stop that uncovered a firearm and drug paraphernalia. Brief for Petitioner at 10, Borden v. United States, No. 19-5410 (U.S. filed Apr. 27, 2020). Borden was charged in federal court for illegally possessing a firearm as a convicted felon, and he pled guilty. Id. Borden had two prior convictions for “intentional or knowing aggravated assault,” and one prior conviction for “reckless aggravated assault.” Id. at 11. At sentencing, Borden maintained that “reckless aggravated assault” was not a violent felony under § 924(e)(2)(B)(i), but the district judge disagreed and ruled that the ACCA applied. Id. at 11–12. Borden was sentenced to nearly a decade in federal prison. Id. at 12.
Underlying this interpretive question are two prior Supreme Court cases, the import and importance of which the parties dispute. First, in Leocal v. Ashcroft, the Court held that driving under the influence and thereby causing “[s]erious bodily injury to another” was not a “crime of violence” under 18 U.S.C. § 16(a). 543 U.S. 1, 9–10 (quoting Fla. Stat. § 316.193(3)(c)(2). Section 16(a) defines a “crime of violence” as “an offense that has as an element the use . . . of physical force against the person . . . of another.” 18 U.S.C. § 16(a). The Court emphasized that regardless of whether the word “use” “supplies a mens rea element,” it cannot be read to encompass accidental conduct. Id. at 9. More recently, in Voisine v. United States, the Court held that because reckless misdemeanor assault constitutes “use of force,” individuals convicted of recklessly assaulting “a domestic relation” fall within 18 U.S.C. § 922(g)(9)’s restriction on firearm possession by persons convicted of a “misdemeanor crime of domestic violence.” 136 S. Ct. 2272, 2278 (quoting § 922(g)(9)). The Court explained that to “use” means to employ something, and although the act of employing something must be “volitional,” the “word [‘use’] is 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.” Id. at 2278–79 (emphasis added).
Borden argues that unlike the statute in Voisine, which dealt with “use of force” in the specialized context of gun possession by domestic abusers, the ACCA implicates “use of . . . force . . . against the person of another,” which requires that the force be targeted at another, excluding recklessness from the statute’s reach. See Brief for Petitioner at 18–20, 30, 32. Relying on Leocal, Borden emphasizes the similarity between reckless and negligent conduct. See id. at 22–23. In contrast, the Government asserts that the words “against another person” add no mens rea requirement to the ACCA, and contends that Voisine cannot be meaningfully distinguished. See Brief for the United States, at 10–14, 23–26, Borden v. United States, No. 19-5410 (U.S. filed June 8, 2020). The parties also dispute the rule of lenity’s application to the ACCA. See id. at 45–46; Brief for Petitioner at 42–44.
Borden is a case about consequences. The ACCA itself is a consequence of decades-old “tough on crime” legislation that, despite years of discussion about criminal justice reform, has not been substantially revised by Congress. It remains to be seen what consequences, if any, the Supreme Court’s decision will have on the legislative branch. Doctrinally, Borden carries serious consequences. The Court must evaluate the consequences of an expansive interpretation of the ACCA—according to Borden, bringing “drunk drivers, rowdy door openers, reckless parents, and fleeing shoplifters” within the law’s scope—and of a restrictive one—according to the Government, excluding second-degree, depraved heart murder from definition as a “violent felony.” See Brief for Petitioner at 18; Brief for the United States at 21–22, 37. Finally, Borden is a reminder of the continuing and substantial consequences of prior convictions—in Charles Borden’s case, thirteen years prior—and of the related inadequacy of our justice system’s ability to facilitate successful reentry and reduce recidivism.