WASHINGTON – The Supreme Court Thursday reduce the range of the federal Armed Career Criminal Act, a kind of three-strike law, which is ruled by a 5-to-4 vote that violent crimes are committed recklessly – as opposed to intentionally or knowingly – do not count as strikes.
The law requires mandatory sentences of 15 years for people convicted of possession of firearms if they have previously been convicted of three violent crimes. An offense qualifies as a violent offense if it involves ‘the use, attempted use or endangered use of physical force against the person of another’.
The majority had an unusual coalition, with Judge Neil M. Gorsuch joining the three-member Liberal wing, and Judge Clarence Thomas voting with the majority on various grounds.
The case concerns Charles Borden Jr., who pleaded guilty to a federal gun crime. Prosecutors wanted to impose the mandatory 15-year sentence based on three previous convictions, one of which was in Tennessee for reckless assault. The conviction, according to Mr. Signs, should not count as a strike. Lower courts rejected his argument and he was sentenced on the basis of career criminal law.
Judge Elena Kagan, who wrote for four judges, disagrees, saying the law excludes crimes in which the accused was merely reckless. The words ‘against the person of another’, she wrote, require voluntary action and ‘demand that the offender direct, or target, his action on another individual’.
She gave an example to illustrate the difference. Consider, she writes, a commuter who makes work, who lets red light run and hits a pedestrian. The driver was reckless, she wrote, but “did not use force on anyone else: he did not train his car at the pedestrian, so that he would overcome him.”
“In plain language,” Justice Kagan wrote, “against” means “as opposed to”, with examples: “The general used his forces against a rival regiment, or the chess master played the Queen’s Gambit against her opponent.”
- A great month. June is the high season for rulings in the Supreme Court. This is the last month of the court’s annual term, and judges tend to save their biggest decisions for the end of the term.
- 4 Major cases. The court will rule on the fate of Obamacare, as well as a case that could determine numerous laws dealing with the election rules in the coming years. It also assumes an issue regarding religion and gay rights and one or more students can be disciplined for what they say on social media (here is an audio report on the subject; and here is the public opinion on several major issues).
- What to pay attention to. The approaches that Amy Coney Barrett, the latest justice, and Brett Kavanaugh, the second latest, follow. This will be crucial because the three Liberal judges now need at least two of the six Conservatives to form a majority. Before the death of Ruth Bader Ginsburg, the Liberals needed only one Conservative.
- Look ahead. Next year’s term, which begins in the fall, will deal with abortion, guns and perhaps affirmative action, and could eventually be the most important term so far under Chief Justice John Roberts.
In addition to Justice Gorsuch, Judges Stephen G. Breyer and Sonia Sotomayor joined Justice Kagan’s multiple opinion.
Judge Thomas agrees with the multiple end, but for a different reason. “A crime that can only be committed through recklessness does not have ‘the use of physical violence’,” he wrote, quoting from an earlier opinion“Because the phrase ‘has a clear meaning that applies only to intentional acts that cause harm.’ ‘
In contrast, Judge Brett M. Kavanaugh wrote that “the court’s ruling violates Congress ‘judgment on the danger of recidivist violent criminals possessing firearms illegally and threatening further violence.’
“Offenses against the person,” he wrote, is a widely used legal term that encompasses categories of crime and does not involve the degree of guilt. Judge Kagan replied that the phrase in career criminal law was significantly different.
“This is no way to do legal construction,” she wrote. “A court cannot delete the awkward language and insert the awkward language to give the court preference.”
Judge Kavanaugh added that the ordinary meaning of “against the person of another” in any case includes recklessness.
“When an individual recklessly fired a gun at a house and injured someone inside, the person used violence against the victim,” he wrote. ‘When an individual recklessly throws bricks of an overpass and kills a driver driving down there, the person has used violence against the victim. If an individual recklessly drives 80 miles per hour through a neighborhood and kills a child, the person has used violence against the child.
“It contradicts common sense and the English language,” he wrote, “to indicate otherwise.”
Chief Justice John G. Roberts jr. And Judges Samuel A. Alito jr. And Amy Coney Barrett joins Justice Kavanaugh’s disagreement in the case, Borden v. United States, no. 19-5410.