Today’s big legal news is Borden v. United States, 593 U.S. __ (2021), in which the Supreme Court held that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”).
Borden pleaded guilty as a felon-in-possession of a firearm. The prosecution sought an enhanced sentence under the ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.” An offense qualifies as a violent felony under the ACCA’s elements clause if it necessarily involves “the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. 924(e)(2)(B)(i). One of Borden’s three predicate convictions was for reckless aggravated assault in violation of Tennessee law. He argued that this offense was not a violent felony under the ACCA’s elements clause because a mental state of recklessness suffices for conviction, and only purposeful or knowing conduct satisfies the requirement of the use of force “against the person of another.” The Sixth Circuit affirmed his enhanced sentence.
The Supreme Court reversed and remanded, concluding that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the ACCA’s elements clause. The Court found that the ACCA’s narrow “category of violent, active crimes” is best understood to involve a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk. Classifying reckless crimes as “violent felonies” would also conflict with ACCA’s purpose of addressing the special danger created when a particular type of offender, a violent criminal, possesses a gun. The “against” clause is not window dressing: It is the “critical” text for deciding the level of mens rea needed.
The criminal defense bar should note how important this decision may be. First, the elements clause of the ACCA is very similar to the elements clauses of 18 U.S.C. § 924(c)(3)(A), 18 U.S.C. § 16(a), and the Career Offender Sentencing Guideline, so Borden’s holding is likely to apply to these provisions as well. Second, as Justice Kavanaugh notes in his dissent, many offenses, including some federal crimes, can be committed with a mens rea of recklessness, including certain types of assault, manslaughter, and even murder. While Borden leaves open whether a crime that requires “extreme recklessness” can qualify as a “violent felony,” it is certainly worth arguing that even this mental state is not enough to make an offense an ACCA “violent felony” (or a § 924(c)/§16(a) “crime of violence”).