Supreme Court Narrows Reach of Repeat-Offender Law

WASHINGTON—The Supreme Court pared back the reach of a recidivist sentencing law from the 1980s, ruling Thursday that prior convictions for crimes of reckless violence aren’t sufficient to trigger additional years of imprisonment for felons convicted of gun possession.

The Armed Career Criminal Act targets repeat offenders responsible for most violent crimes, Justice

Elena Kagan

wrote for the plurality, singling out those with a history of knowing the harm they were inflicting when committing crimes. Three such prior convictions expose felons to a mandatory minimum of 15 years for possessing a firearm, instead of a 10-year sentence.

But while reckless crimes, such as drunken driving, can cause great injury, they don’t reflect the propensity for violence that Congress sought to address in the recidivist law, Justice Kagan wrote. The case saw the court’s three liberals unite in the plurality while its six conservatives divided three separate ways.


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Stephen Breyer


Sonia Sotomayor

joined the Kagan opinion, as did Justice

Neil Gorsuch.


Clarence Thomas

voted for the outcome but published a separate opinion. Justice

Brett Kavanaugh

dissented, joined by Chief Justice

John Roberts,


Samuel Alito

and Justice

Amy Coney Barrett.

As with some other recent cases, Thursday’s decision boiled down to the meaning of a single word. Here, the term was “against,” as used in statutory language increasing sentences for felons previously convicted of crimes involving “the use, attempted use, or threatened use of physical force against the person of another.”

The government’s brief argued that “against” was a neutral preposition describing physical contact itself, “like waves crashing ‘against’ the shore or a baseball hitting ‘against’ the outfield fence.”

Charles Borden Jr.,

who had three priors for aggravated assault when he pleaded guilty in 2018 to being a felon in possession of a firearm, contended that “against” conveyed something more: violence specifically targeted at another person.

That distinction mattered for Mr. Borden, because his 2007 conviction in Tennessee state court was for reckless aggravated assault, which doesn’t necessarily involve intent to harm someone. If that conviction didn’t count, he wouldn’t face the extra five years in prison.

Justice Kagan observed that criminal law typically assigns culpability according to the offender’s state of mind. Those who intentionally seek to inflict injury are considered most blameworthy, while those who cause harm through negligence, or failure to exercise ordinary care, are least culpable.

“Recklessness falls in the midpoint of that hierarchy, below both intentional acts and those committed knowingly, or with the expectation that injury will result,” Justice Kagan wrote. “A person acts recklessly, in the most common formulation, when he ‘consciously disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards,” she wrote, citing the Model Penal Code.

“That risk need not come anywhere close to a likelihood. Speeding through a crowded area may count as reckless,” she said, even if the odds are less than even of hitting a pedestrian.

In light of the law’s focus on the worst of the worst, “the phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual. Reckless conduct is not aimed in that prescribed manner,” Justice Kagan wrote. Treating “reckless offenses as ‘violent felonies’ would impose large sentencing enhancements on individuals (for example, reckless drivers) far afield from the ‘armed career criminals,’” she wrote.

The Armed Career Criminal Act, in part because it creates federal consequences for violations of state law, is a complex and in places vaguely worded statute that frequently has required clarification from the Supreme Court.

Thursday’s dissenters argued that the plurality made a grammatical distinction that Congress never intended between knowing and reckless crimes.

“Keep in mind that we are talking about reckless offenses such as reckless assault or reckless homicide where a defendant made a deliberate decision to endanger another by using force, and as a result injured or killed someone,” Justice Kavanaugh wrote.

“Reckless conduct is not benign,” he said.

Write to Jess Bravin at

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Source: WSJ – US News

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