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.
