The question the Court had to answer was this: when has someone been convicted of burglary? The answer mattered. Michael Descamps faced the possibility, under ACCA, the Armed Career Criminal Act, 18 U.S.C. §924(e), of a 15-year increase in his prison term if he had three earlier convictions “for a violent felony,” and one of the crimes defined as a violent felony is “burglary.”
What’s a burglary? Congress didn’t specify, and different states define the crime differently. That’s troublesome, since it could have meant that the same conduct could count as “burglary” in one state but not another, and therefore that some people would face 15 years of extra imprisonment for conduct that other people did not similarly have to answer for.
To avoid that prospect, as Justice Kagan explains in the first paragraph of her opinion for the Supreme Court,
courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.
Generic burglary, says the Court, requires “breaking and entering” – so if you are invited into someone’s house and while you’re there you take her priceless heirlooms, you’re guilty of various crimes but not of burglary, because you didn’t “break” into the house. Under the categorical approach, therefore, if someone is convicted of a crime called burglary which doesn’t include the element of “breaking and entering,” then that person’s conviction won’t count under ACCA.
But what if someone is convicted under a statute that specifies two forms of what it calls burglary, and the first form does require breaking and entering but the second doesn’t? When dealing with such a “divisible statute,” Justice Kagan explains, courts use the “modified categorical approach.” Under this approach, the court can look to “a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Once the court knows which form of the offense the defendant was convicted of, then it can return to the categorical approach’s assignment of comparing the elements of that particular form of the offense and the generic version of the crime.
In Descamps, as the majority saw it, the statute was not “divisible.” Rather it was “an ‘indivisible’ statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense.” Specifically, California’s burglary statute covered anyone “‘who enters’ certain locations ‘with intent commit grand or petit larceny or any felony.’” Under this statute, you wouldn’t have to break and enter – though one way of accomplishing your “entry” would be to break in first. The question for the Supreme Court was whether courts should be permitted to consult other documents (notably, the record of Descamps’ guilty plea to the original offense, in which he didn’t disagree with the prosecutor’s assertion that his crime involved a break and entry) to determine whether the offense of which a defendant was convicted must have featured a “break and entry.”
The Supreme Court’s answer is no. In other words, courts faced with an “indivisible” – but broad – statute must simply apply the categorical approach. Under that approach, if the statute doesn’t require a break and entry, then a conviction under it isn’t a burglary conviction for ACCA purposes, even if what the defendant actually did was to break and enter. As the Supreme Court explicitly says: “Whether Descamps did break and enter makes no difference.”
That’s a formalist decision.
But it’s probably the right decision. I won’t review all the arguments the majority makes, but one of them is that the alternative would be that judges in ACCA cases would have to start parsing the records of old cases to try to figure out what defendants actually were convicted of. That’s not easy. Here, for instance, Descamps’ guilty plea to California burglary charges evidently was entered thirty years before he came to face potential increased sentencing under ACCA, and what the plea colloquy shows is just that he didn’t object to the prosecutor’s description of the crime. Does that mean the judge in that case, in accepting the guilty plea, must have found that Deschamps did break and enter? One might wonder.
There’s also a constitutional difficulty: suppose we agree that it’s not entirely clear what Deschamps was convicted for. It might still be possible for a judge to make a well-founded determination on this question. But in doing so that judge would be finding facts about Deschamps’ prior conviction, and a recently established constitutional rule declares that “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), as quoted in Descamps. It’s quite possible that for an ACCA sentencing judge to determine the facts that underlaid an earlier conviction, rather than just the existence of the conviction (for the right type of offense), would be to violate this rule. That constitutional concern supports interpreting ACCA, the statute which provides for increased sentences, not to allow this sort of judicial inquiry along the way.
As you can see, just explaining where the Court’s formalist rule comes from takes some time. That’s worth remembering: one of the reasons that formalist rules evolve is that the system of laws is complex and elaborate. The whole system is in that sense quite formalist, and it’s not surprising that particular, and thoroughly formalist, rules evolve in various niches of this system. It’s also not surprising that formalist rules might in some circumstances be the best ones, and might actually serve important and broad goals of fairness and constitutionalism. In a system as multi-faceted as this one, there will likely be roles for many different sorts of rules or standards, from formalist to flexible.
It’s also worth recognizing that as any rule evolves, it generates subrules. The “categorical approach” gives rise to the “modified categorical approach.” Moreover, that’s not the end of the matter. The Descamps case itself asked whether a further extension of the “modified categorical approach” should be made, and while the Court rejected that modification it explicitly recognized another complication that still remains for resolution. This is the question of where to find the “elements” of the underlying offense. Must they appear in the text of the underlying statute? Or can also they be part of the offense by virtue of judicial decisions interpreting that text in some non-obvious way? The Court reserves this question. I imagine there are others as well. The nature of legal propositions is to give rise to the need for other legal propositions.
Finally, it’s important to acknowledge that even though formalist rules can be defined and implemented, they are likely always to rest on somewhat shaky foundations. Here, for instance, the categorical approach looks to determine the “elements” of the offense in question, and the modified categorical approach looks at certain documents from the actual conviction to determine which offense was charged in a case under a “divisible statute.” But what’s an “element” of an offense, and how do you know if a statute is “divisible” or not?
Justice Alito, the only dissenter in the case, says that sometimes statutes define not “elements” but rather “means” of an offense. So a statute might provide that someone commits a crime by using either method A or method B. Is this a “divisible statute,” defining two crimes, the method A crime and the method B crime, or is it a nondivisible statute, defining a single crime that may be committed by either of two methods? Justice Alito says that “[t]he feature that distinguishes elements and means is the need for jury agreement” – if the jury has to settle on one method or the other, then those are elements, but if it can convict while some jurors believe method A was used, and some believe method B was used, then the methods are just means. (To make this concrete: Jurors typically can convict someone for murder based on his having intentionally killed another person; they don’t generally have to agree on whether he used one weapon or another one.)
To whatever extent it’s unclear whether a given underlying statute defines means or elements, it may also be unclear whether it is divisible or indivisible. If we don’t know whether the statute is divisible or nondivisible, then we also don’t know whether to apply the categorical approach or the modified categorical approach. It might also be open to question, as Alito argues, just what sort of statutes the Supreme Court’s earlier decisions applying these approaches were dealing with, and therefore just what the Court’s earlier decisions mean.
The majority responds in a footnote (note 2) that “we can see no real-world reason to worry” about the elements/means issue. That may be so. It seems to me that a legal rule can operate quite smoothly even though there may be unsolved and even unsolvable intellectual problems lurking within it. The system of law isn’t entirely coherent, and any effort to make it so is doomed to fail. But that truth doesn’t mean there’s no role for clear, formalistic rules. They do have their place, even if it in a sense suspended in mid-air.