Borden v. United States: Victory at Supreme Court for Defendants

This month the Supreme Court held that “reckless” conduct does not constitute a “violent felony” under the Armed Career Criminal Act (“ACCA”).  A prior crime that is merely reckless thus cannot be used as one of the three predicate felonies necessary to trigger the ACCA’s 15-year mandatory minimum sentence. (For more background on the language and history of the ACCA, please see the earlier blog post.)

The holding enunciated by Justice Kagan, writing for the Court, was unequivocal: “We must decide whether the elements clause’s definition of ‘violent felony’ – an offense requiring the ‘use of physical force against the person of another’ – includes offenses criminalizing reckless conduct. We hold that it does not.” Borden v. United States, 593 U.S.7 (2021). 

This decision was issued by a slim plurality—Justices Sotomayor, Breyer, and Gorsuch joined Kagan’s opinion, while Thomas concurred with the judgment, the majority of justices thus favored the position of the defendant, Charles Borden. Meanwhile, Justices Alito and Barret joined Kavanaugh’s lengthy dissent.

The ACCA sets a mandatory minimum 15 year sentence for a person convicted of illegally possessing a firearm if they have committed three or more violent felonies. Violent felonies are defined as those that have “as an element the use, attempted use, or threatened use of physical force against the person of another.”  18 U.S.C. § 924(e). The Court’s ruling closely analyzed the statutory phrase “use of physical force against the person of another,” as used in the ACCA’s “violent felony” clause. The plurality interpreted “use of force against the person of another” as meaning that the defendant directed violent force towards another person—which reckless conduct is not. The court parsed that difference with the following illustration of recklessness: “a commuter, who late to work, decides to run a red light, and hits a pedestrian whom he did not see. The commuter has consciously disregarded a real risk, thus endangering others.” Borden, 593 U.S. at 10. But, as the Court explained, that reckless conduct is far different from the conduct described in the statute: “because [the commuter’s] conduct is not opposed to or directed at another- he does not come within the elements clause.” Id. at 11.

In dissent, Justice Kavanaugh maintained that the line between intentional and reckless offenses is simply too thin, particularly as both types of crimes can result in acts of violence against another person.  Borden, 593 U.S. at 15 (Kavanaugh, J., dissent ) (“[r]eckless conduct is not benign” and “a person who engages in, for example, reckless assault or reckless homicide generally injures or kills another person.”).

But Justice Kagan easily dispensed with that argument, which glosses over the foundational principle of criminal law that a person’s mental state in committing a crime determines their degree of culpability.  As Justice Kagan noted, “[r]ecklessness and negligence are less culpable mental states.” Id. at 5. There is thus a significant difference between a person who “drives his car straight at a reviled neighbor, desiring to hit him” and the commuter who is late to work and recklessly hits someone. Id. at 10.

Justice Kagan also swiftly shut down Justice Kavanaugh’s observation that “[a]s a matter of ordinary meaning, it is perfectly natural to say that someone recklessly used force against another person,” And that because other decisions and state penal codes have used phrases like “recklessly using force against others” and subsequently, the “use of force” clause here must also include reckless conduct.  Id. at 18 (Kavanaugh. J dissent). Justice Kagan explained the dissent’s fallacy—it “just assumes the conclusion: The very question here is whether the statutory language Congress enacted requires that force be directed at, rather than just happen to hit, an object.” Id. at 15.  Based on the glaring absence of the term “recklessness” from the ACCA’s text, the Court  concluded: “If Congress had used the word ‘recklessly’ in the elements clause, we would have to interpret that clause to cover reckless offenses, even though the best reading of that word goes the other way. But Congress did not say ‘recklessly.’” Id. at 15. She concluded that the best interpretation of the statue is one where they “must construe the elements clause – as it is- without first inserting the word that will (presto!) produce the dissent’s reading.” Id.

This decision, narrowing the ACCA’s scope, is a huge win for defendants threatened with application of the ACCA.  The Court recognized that “the treatment of reckless offenses as ‘violent felonies’ would impose large sentencing enhancements on individuals (for example, reckless drivers) far afield from the ‘armed career criminals’ ACCA addresses.” Id. at 8. Indeed, the differences in sentences for ACCA and non-ACCA defendants is simply staggering.  In this case, Mr. Borden faced the difference of a 10 year maximum sentence (without the ACCA’s application) or a 15 year minimum (with the ACCA’s application). According to an amicus brief submitted to the Court, “in practice, ACCA dramatically increases the sentences for hundreds of defendants convicted of firearms-related offenses each year.” Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae at 23, Borden v. United States, 593 U.S. _ (2021).

Thankfully, the Supreme Court decided in Mr. Borden’s favor, and avoided exacerbating the mass incarceration crisis United States already faces. Although we still have a long way to go, hopefully, the Supreme Court’s Borden decision will help change these astounding incarceration patterns. 

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