Amicus Curiae Brief — James Walker, Petitioner v. United States

No. 19-373

IN THE

Supreme Court of the United States

————

JAMES WALKER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

RYAN P. MULVEY

Counsel of Record

MICHAEL PEPSON

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 444-2841

rmulvey@afphq.org

Counsel for Amicus Curiae

January 13, 2019

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 2

Argument ..................................................................... 5

I.

The ACCA is a Classic Example of

Overcriminalization: a Real Problem

that Harms Real People ......................................5

II.

Absent a Clear Statement to the Contrary,

Courts Should Presume that Criminal Statutes

Require Knowing or Intentional Conduct ........ 14

A.

The ACCA’s Force Clause Unambiguously

Distinguishes Between Intentional and

Reckless Conduct Resulting in Harm....... 14

B.

The Role of Mens Rea in Distinguishing

Culpability Levels is Deeply Rooted in

Our System of Law .................................... 18

C.

There Should Be a Background

Presumption in Favor of a Knowledge

or Intent Mens Rea for Statutes Like

the ACCA that Expose Defendants to

Severe Penalties ........................................ 23

III. Under the Rule of Lenity, the ACCA’s Force

Clause Must be Narrowly Construed ............... 26

Conclusion ................................................................. 28

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Begay v. United States,

553 U.S. 137 (2008) ..................................... 16, 26

Brown v. Chicago Board of Education,

824 F.3d 713 (7th Cir. 2016) ............................. 24

Dennis v. United States,

341 U.S. 494 (1951) ........................................... 18

Elonis v. United States,

135 S. Ct. 2001 (2015) ....................................... 24

Holloway v. United States,

No. 01–1017, 2014 WL 1942923

(E.D.N.Y. May 14, 2014) ..................................... 6

Johnson v. United States,

135 S. Ct. 2551 (2015) ......................................... 7

Leocal v. Ashcroft,

543 U.S. 1 (2004) ................................... 16, 22, 26

McNally v. United States,

483 U.S. 350 (1987) ........................................... 27

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ....................................... 28

Staples v. United States,

511 U.S. 600 (1994) ..................................... 18, 24

iii

Stokeling v. United States,

139 S. Ct. 544 (2019) ......................................... 23

United States v. Bass,

404 U.S. 336 (1971) ........................................... 27

United States v. Begay,

470 F.3d 964 (10th Cir. 2006) ........................... 16

United States v. Cordoba-Hincapie,

825 F. Supp. 485 (E.D.N.Y. 1993) .................... 20

United States v. Davis,

139 S. Ct. 2319 (2019) ....................................... 26

United States v. Griffin,

No. 07-28-1,

2018 U.S. Dist. LEXIS 159377

(E.D. Pa. Sept. 18, 2018) ................................... 27

United States v. Harper,

875 F.3d 329 (6th Cir. 2017) ....................... 14, 23

United States v. Middleton,

883 F.3d 485 (4th Cir. 2018) ....................... 15, 17

United States v. Morissette,

342 U.S. 246 (1952) ........................................... 20

United States v. Orona,

923 F.3d 1197 (9th Cir. 2019) ........................... 15

United States v. Parson,

955 F.2d 858 (3d Cir. 1992) .............................. 17

iv

United States v. Rose,

896 F.3d 104 (1st Cir. 2018) ............................. 27

United States v. Santos,

553 U.S. 507 (2008) ..................................... 26, 27

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) ........................................... 24

United States v. Yirkovsky,

259 F.3d 704 (8th Cir. 2001) ....................... 12, 13

United States v. Young,

766 F.3d 621 (6th Cir. 2014) ................... 3, 11, 12

Vacco v. Quill,

521 U.S. 793 (1997) ........................................... 20

Van Don Nguyen v. Holder,

571 F.3d 524 (6th Cir. 2009) ............................. 17

Voisine v. United States,

136 S. Ct. 2272 (2016) ................................. 14, 15

Walker v. United States,

769 F. App’x 195 (6th Cir. 2019)....................... 10

Walker v. United States,

931 F.3d 467 (6th Cir. 2019) ................... 2, 11, 15

Yates v. United States,

135 S. Ct. 1074 (2015) ..................... 13, 16, 26, 27

v

Statutes

18 U.S.C. § 924(e)(2)(B)(i) ...................................... 15

Tex. Penal Code § 29.02(a)(1) (1974) ..................... 17

Rules

Model Penal Code § 2.02(3) .................................... 25

Other Authorities

Benjamin Levin, Guns and Drugs,

84 Fordham L. Rev. 2173 (2016) ...................... 13

Daniel Givelber, The New Law of Murder,

69 Ind. L.J. 375 (1994) ...................................... 21

Francis Bowes Sayre, Mens Rea,

45 Harv. L. Rev. 974 (1932) ........................ 18, 19

Hearing before the Subcomm. on Crime,

Terrorism, and Homeland Sec. of the

U.S. H.R. Judiciary Comm. (June 1,

2017) (statement on behalf of the

Judicial Conference of the United States

from U.S. District Judge Paul Cassell),

reprinted in 19 Fed. Sent. R. 344 (2007) ............ 3

Hon. Jack Weinstein, et al., The Denigration

of Mens Rea in Drug Sentencing,

7 Fed. Sent. R. 121 (1994)................................. 20

vi

Jeffrey A. Turner, Note, Reestablishing a

Knowledge Mens Rea Requirement for

Armed Career Criminal Act “Violent

Felonies” Post-Voisine,

72 Vand. L. Rev. 1717 (2019)................ 15, 17, 25

Michael Pepson, Comment,

Therapeutic Jurisprudence in

Philosophical Perspective,

2 J. of Law, Phil. & Culture 239 (2008) ........... 18

Neil Gorsuch et al.,

A Republic, If You Can Keep It (2019) ............. 22

Paul G. Cassell & Erik Luna,

Sense and Sensibility in Mandatory

Minimum Sentencing,

23 Fed. Sent. R. 219 (2011) ............................... 12

Resentencing Transcript,

United States v. Walker, No. 07-20243

(W.D. Tenn. June 28, 2017),

ECF No. 148 .............................................. 8, 9, 10

Richard G. Singer, The Resurgence of Mens

Rea: The Rise and Fall of Strict

Liability, 30 B.C. L. Rev. 337 (1989) .......... 18, 19

Sentencing Trancript,

United States v. Walker, No. 07-20243

(W.D. Tenn. July 14, 2011), ECF No. 124 ...... 8, 9

vii

Sentencing Transcript,

United States v. Young, No. 12-45

(E.D. Tenn. May 9, 2013), ECF No. 41 ........... 2, 7

Stephen F. Smith,

“Innocence” and the Guilty Mind,

69 Hastings L.J. 1609 (2018) ...................... 21, 25

Stephen F. Smith,

Proportional Mens Rea,

46 Am. Crim. L. Rev. 127 (2006) ...................... 21

Stephen R. Sady & Gillian R. Schroff,

Johnson: Remembrance of Illegal

Sentences Past,

28 Fed. Sent. R. 58 (2015)............................. 5, 13

Stephen R. Sady,

The Armed Career Criminal Act—What’s

Wrong with “Three Strikes, You’re Out”?,

7 Fed. Sent. R. 69 (1994)..................................... 5

William Blackstone, Commentaries ...................... 19

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open

society. AFPF is interested in this case because it

believes that the Armed Career Criminals Act

(“ACCA”) is an irrational, draconian statute that is a

prime contributor to the problem of mass

incarceration and a symptom of the broader problem

of overcriminalization.

The ACCA, like other

mandatory minimum laws, leads to cruel, unjust

penalties for individual defendants, collaterally

harms their families, damages communities, and

undermines the legitimacy of our criminal justice

system—all at taxpayer expense.

AFPF also believes that, at the least, ACCA

enhancements should be reserved for the most

dangerous armed career criminals who intend to

violently harm others. The ACCA’s severe sentencing

1 All parties have consented to the filing of this brief.

Amicus

states that no counsel for a party authored this brief in whole or

in part and that no person other than amicus or its counsel made

any monetary contributions intended to fund the preparation or

submission of this brief.

2

consequences should not be imposed based on a

defendant’s prior reckless actions alone; that is, when

the defendant had no intent to physically hurt anyone.

The ACCA’s plain language supports this conclusion

and is consistent with the historical background

presumption that, absent a clear statement to the

contrary, criminal statutes that are silent about mens

rea should be construed to require knowing or

intentional conduct.

SUMMARY OF ARGUMENT

Petitioner James Walker was sentenced to fifteen

years for the crime of possessing a handful of bullets.

His case calls to mind Jean Valjean in Les Misérables,

who served nearly twenty years in prison for stealing

a single loaf of bread to feed his starving family. See

generally Victor Hugo, Les Misérables (1893). Or

perhaps, as a federal district judge in another case has

suggested, Mr. Walker’s story is better described as

something out of a Charles Dickens novel. See

Sentencing Tr. 25, United States v. Young, No. 12-45

(E.D. Tenn. May 9, 2013) [hereinafter 05/09/13

Sentencing Tr.], ECF No. 41. Sadly, this is an all-toocommon tale. “The issue here recurs frequently and

typically doubles a defendant’s sentence[.]” Walker v.

United States, 931 F.3d 467, 469 (6th Cir. 2019)

(Kethledge, J., dissenting from denial of rehearing en

banc).

The ACCA and other mandatory minimum

statutes frequently result in cruel, unjust outcomes.

Those statutes also impose real costs on our society as

a whole and undermine the legitimacy of our criminal

justice system. As one federal district court judge put

it: “Mandatory minimum sentences mean one-size-

3

fits-all injustice. . . . Mandatory minimum sentences

not only harm those unfairly subject to them, but do

grave damage to the federal criminal justice system

. . . . Perhaps the most serious damage is to the

public’s belief that the federal system is fair and

rational.” Hearing before the Subcomm. on Crime,

Terrorism, and Homeland Sec. of the U.S. H.R.

Judiciary Comm. (June 1, 2017) (statement on behalf

of the Judicial Conference of the United States from

U.S. District Judge Paul Cassell), reprinted in 19 Fed.

Sent. R. 344, 344–47 (2007). And as a Sixth Circuit

judge aptly put it in another ACCA matter where a

defendant was sentenced to fifteen years for

possession of a few bullets: “Society pays a great price

when Congress over-criminalizes conduct. The cycle

of poverty, criminality, and incarceration decimates

communities, often for no truly good law enforcement

reason.” United States v. Young, 766 F.3d 621, 633

(6th Cir. 2014) (cleaned up). “Perhaps one of the

greatest harms is that indiscriminate criminalization

erodes the faith of our citizens in the federal criminal

justice system. That loss of faith in the system

entrusted with societal justice reverberates through

our communities, damaging our families, our schools,

and our workplaces[.]” Id. at 634. So too here.

The reason why the ACCA, in particular, leads to

grossly disproportionate and arbitrary sentences is

that the triggering event for eligibility for sentencing

enhancement—possession of ammunition or a

firearm—is not malum in se but rather malum

prohibitum and solely based on status as a felon.

There is no requirement that the underlying

convictions (for which the defendant has already paid

his or her debt to society) supporting the fifteen-year

4

mandatory minimum be related—temporally or

otherwise—to the events giving rise to the felon-inpossession charge. Thus, the mere possession of

bullets may give rise to a mandatory fifteen-year

prison sentence, based on state felony convictions

dating back well over a decade. That is just plain

wrong.

Particularly where severe criminal penalties are

involved, and a statute is silent about the required

mens rea, courts should presume that a defendant

must have acted intentionally to fall within its scope,

and that mere recklessness is insufficient. The rule of

lenity further counsels in favor of this result. At the

least, Congress must speak clearly if it wishes to

displace traditional mens rea requirements.

It is fundamentally unfair for Mr. Walker to

languish in prison based on an expansive, overbroad

reading of the ACCA that flips the rule of lenity on its

head and casts the ACCA dragnet far beyond the

limited universe of intentional violent conduct that

Congress intended to capture. This Court can, and

should, correct this error of statutory interpretation,

which has led to profoundly unjust consequences for

countless

defendants,

their

families,

their

communities, and our country.

5

ARGUMENT

I.

THE ACCA IS A CLASSIC EXAMPLE OF

OVERCRIMINALIZATION: A REAL PROBLEM

THAT HARMS REAL PEOPLE

“The ACCA is not only poorly drafted, but its

irrational harshness has become one of the engines

driving mass over-incarceration in America.” Stephen

R. Sady & Gillian R. Schroff, Johnson: Remembrance

of Illegal Sentences Past, 28 Fed. Sent. R. 58, 63

(2015). As a Chief Deputy Federal Public Defender

has aptly explained:

A penal statute’s moral validity should

be reflected in society’s acceptance of

both the prohibition and the punishment

as generally applied. . . . The broad reach

of the ACCA creates a deep gulf between

the

statute’s

literal

purpose—

incarcerating

dangerous

career

criminals—and its sweep. The Act has

no requirement of recency. A career

ordinarily connotes a commitment to a

course of conduct that is continuing. Can

any rational definition of career criminal

include someone who committed no new

crimes for thirty-five years? Or fifteen

years? Or even five years?

Stephen R. Sady, The Armed Career Criminal Act—

What’s Wrong with “Three Strikes, You’re Out”?,

7 Fed. Sent. R. 69, 69 (1994). The instant case

showcases the gulf between the ACCA’s putative

purpose and its all-too-broad (and irrational) sweep,

6

which leads to highly unjust and arbitrary results, as

happened here to Mr. Walker.2

A fifteen-year mandatory minimum sentence for

the crime of possessing a handful of bullets—not even

a gun—is beyond draconian under any set of

circumstances in a rational world. This case is a

perfect example of the ACCA’s harshness and

irrationality. Mr. Walker is being punished not for his

present conduct but for his past crimes (for which he

has already served his sentence). 3 The most recent of

Prosecutors often use draconian mandatory-minimum

sentencing enhancements, like those available under the ACCA,

to leverage plea bargains and impose a severe penalty on

defendants who, like Mr. Walker, dare to go to trial. See, e.g.,

Holloway v. United States, No. 01–1017, 2014 WL 1942923, at *1

(E.D.N.Y. May 14, 2014) (“This almost 20–year–old case

encapsulates several of the problems that have plagued our

federal criminal justice system in recent years. Specifically, it is

a window into (1) the excessive severity of sentences, (2) racial

disparity in sentencing, and (3) prosecutors’ use of ultraharsh

mandatory minimum provisions to annihilate a defendant who

dares to go to trial.”).

2

3 In response to pleas for leniency, one federal judge, in imposing

the ACCA-required fifteen-year mandatory minimum for

otherwise innocent possession of a few shotgun shells, likened it

to something out of a Charles Dickens novel, explaining: “This is

a case where the Congress of the United States has instructed

federal district judges like myself to impose a sentence of at least

180 months, that is, 15 years. And . . . this sentence is not so

much a punishment for the present crime as it is a punishment

for your history of crimes. . . . And the thinking of the Congress

was that people who are in court continually with violations of

the law are just too much of a burden to society, so at some point

the response should be that we’ll just put those people away, and

7

the state felonies purportedly supporting the ACCA

sentencing enhancement occurred in 1994—that is,

twenty-five years ago. It was not until 2007—thirteen

years later—that Mr. Walker was charged under

Section 922(g) as a felon-in-possession simply for

possessing thirteen bullets.

Tellingly, there was broad agreement below that

Mr. Walker did not deserve to spend fifteen years in

prison based, in large measure, on his past mistakes—

for which he had long ago already been punished and

paid his debt to society. As the district court put it at

Mr. Walker’s resentencing in 2017 in the course of

reevaluating the ACCA enhancement after Johnson v.

United States, 135 S. Ct. 2551 (2015) (holding the

ACCA’s “residual clause” violates due process for

vagueness):

And I don’t—maybe my recollection is a

little faulty, but no one in the courtroom

as best I can recall thought that was a

just sentence. Whatever Mr. Walker was

up to or had been up to and whatever his

criminal history was, it was too high.

And so I ended up sentencing Mr. Walker

to 180 months which is a mandatory

minimum sentence in this case, fifteen

years in prison.

then they will not be a burden and coming into court repeatedly.”

05/9/13 Sentencing Tr. 25:14–25 (emphasis added). Judge

Collier added that “[a] lot of people think these laws are unfair,”

urging Mr. Young to appeal. Id. at 26:01, 28:17–25.

8

I usually don’t say much about

disagreeing with the law. I try not to

because I don’t make the policy. But I

might have said something to the effect

that I thought that was too high and that

I was going to follow it because I had to.

Resentencing Tr. 07:03–17, United States v. Walker,

No. 07-20243 (W.D. Tenn. June 28, 2017) [hereinafter

06/28/17 Resentencing Tr.], ECF No. 148.

Again, as the district court below emphasized in

2017, Mr. Walker has, without question, made

mistakes. But he also has done everything he could

since being arrested in 2007 to turn his life around.

See id. at 79–86; see also Sentencing Tr. 58:07–10,

United States v. Walker, No. 07-20243 (W.D. Tenn.

July 14, 2011) [hereinafter 07/14/11 Sentencing Tr.],

ECF No. 124 (“[The Court:] I think Mr. Walker has

tried to lead a cleaner life. He seems to have stayed

off drugs. He’s gotten married. He’s tried to devote

himself to his family and his church. He’s worked.

These are all good things.”). Indeed, Mr. Walker’s “life

did stabilize with his marriage [to] . . . a very

impressive lady.” 06/28/17 Resentencing Tr. 82:18–

25; see also id. at 82:10–12 (“Unfortunately, his wife

is ill and he realizes it’s worse than it was. So there

is a family need” for his release from prison.). He also

successfully overcame the substance-abuse issues he

9

had battled earlier in life, “so [over] the last ten years

he’s been clean.”4 Id. at 80:22.

While incarcerated, Mr. Walker was a model

prisoner and did not have any disciplinary infractions.

Id. at 83. And although Mr. Walker only has an

eighth-grade education, while incarcerated he

“worked hard for his GED . . . [and] tried to further

his education.” Id. at 83–84. As the district court put

it, Mr. Walker, who was then sixty-three years old, is

“an older man with a significant criminal history who

is locked up for what he thinks may be the rest of his

life, and [yet] he’s still productive. That’s a test of

character . . . [and] he passes that test.” Id. at 86.

Given Mr. Walker’s personal progress, the district

court noted that “really [continued] incarceration

doesn’t benefit Mr. Walker although it has

[previously] benefited him.” Id. at 85.

Unconstrained by the ACCA, and in light of both

Mr. Walker’s efforts to rehabilitate himself and his

family circumstances, the district court resentenced

Mr. Walker to eighty-eight months of imprisonment—

When Mr. Walker was sentenced in 2011, the district court

indicated that, so long as he remained drug free, he could be a

contributing member of society. But the court still expressed

doubt as to whether Mr. Walker could win this battle. See

07/14/11 Sentencing Tr. 59:15–22. Mr. Walker has done so, as

the district court found in 2017. This is no small accomplishment

and should be celebrated and rewarded.

4

10

which Mr. Walker had already served—and ordered

his release from custody.5

Yet under the ACCA, as interpreted by the Sixth

Circuit, Mr. Walker must go back to prison. As Judge

Stranch observed after the government’s successful

appeal of the district court’s resentencing:

James Walker is a 65-year-old man,

convicted of possessing 13 bullets that he

had found in a rooming house he

managed and removed for safekeeping.

. . . He has since been released from

prison. But because our caselaw has

changed, we are sending him back. He

will now be required to serve a prison

sentence that is over double as long—a

sentence of no less than 15 years. . . .

Our decision today is not only unjust, it

is also unsound.

Walker v. United States, 769 F. App’x 195, 200–01 (6th

Cir. 2019) (Stranch, J., concurring).

Judge Kethledge echoed this sentiment:

[T]hough the decision whether to rehear

a case en banc depends primarily on

5 The conclusion of the resentencing hearing was telling, and it

underscores the undue harshness of Mr. Walker’s sentence:

“THE COURT: I can’t say that I considered your sentence before

to be a just sentence, and I hope I’ve done better with this one.”

06/28/17 Resentencing Tr. 07:20–23.

11

jurisprudential concerns, it bears

mention that—by our inaction—we send

back to prison, quite wrongly in my view,

a 65-year-old man whose crime was

possession of a dozen bullets and who

had already served the sentence (88

months) that the district court thought

sufficient.

Walker, 931 F.3d at 469 (Kethledge, J., dissenting

from denial of rehearing en banc). In short, the ACCA

enhancement in this case has resulted in a shockingly

unjust sentence.

But, sadly, this is not an isolated example.

Consider the case of Edward Young, who “received a

mandatory fifteen-year prison sentence for the crime

of having in a drawer in his home seven shotgun shells

belonging to his widowed neighbor.” Young, 766 F.3d

at 630 (Stranch, J., concurring). “Young was then

caught in the dragnet of the [ACCA] . . . which

imposes the same minimum sentence on a person who

acquires shotgun shells passively as it does on a

recently-released felon who possesses automatic

weapons.” Id. at 630.

As the Circuit explained, “[t]he magnitude of

Young’s crime was low, as was his culpability and

motive.” Id. at 627 (per curiam). Indeed, “[o]n the

well-accepted scale of criminal culpability, ranging

from negligent and reckless acts to malicious acts,

Young’s act of innocently acquiring and knowingly

continuing to possess ammunition entail[ed] the

lowest level of culpability that could have rendered

him guilty of the [felon-in-possession] crime.” Id. Yet

that crime still exposed Young to the ACCA’s

12

sentencing enhancement.6 Id. In a concurring

opinion, Judge Stranch understandably “express[ed]

concern that the ACCA and other mandatory

minimum laws are ineffective in achieving their

purpose and damaging to our federal criminal justice

system and our nation,” pointing to Young’s “case as

another example of the need to reconsider the ACCA

and mandatory sentencing in general.”7 Id. at 634

(Stranch, J., concurring).

Another tragic example of the ACCA is the case of

Dane Allen Yirkovsky, who “[i]nstead of paying rent,

. . . agreed to remodel a bathroom at the home [where

he was staying] and to lay new carpeting in the living

room and hallway.” United States v. Yirkovsky, 259

F.3d 704, 705 (8th Cir. 2001). “While in the process of

removing the old carpet, Yirkovsky found a

Winchester .22 caliber, super x, round. Yirkovsky put

the round in a small box and kept it in the room in

which he was living[.]” Id. For the “crime” of putting

a single bullet he found in a box, Yirkovsky received a

6 Young “acquired the shotgun shells passively, he kept them

without any criminal motive, and his knowledge extended only

to his possession and not to its illegality.” Young, 766 F.3d at

627.

7 “Mandatory minimums can also conflict with the separation of

powers doctrine by transferring punishment decisions from the

judiciary to the executive branch, thereby converting federal

prosecutors into de facto sentencers. Many mandatory minimum

cases implicate federalism concerns as well, given that gun and

drug prosecutions in U.S. District Courts involve conduct already

criminalized by the states and handled predominantly by local

courts.” Paul G. Cassell & Erik Luna, Sense and Sensibility in

Mandatory Minimum Sentencing, 23 Fed. Sent. R. 219, 219

(2011).

13

mandatory-minimum fifteen-year prison sentence

under the ACCA as an “armed career criminal.” See

id. at 706. In affirming this sentence, the Eighth

Circuit observed: “In our view Yirkovsky’s sentence of

fifteen years is an extreme penalty under the facts as

presented to this court. However, . . . our hands are

tied in this matter by the mandatory minimum

sentence which Congress established in 18 U.S.C.

§ 924(e).” Id. at 707 n.4.

As these all-too-common examples illustrate, the

ACCA is a driving force of overincarceration. See

Sady & Schroff, supra, at 58; see also Benjamin Levin,

Guns and Drugs, 84 Fordham L. Rev. 2173 (2016). It

is also part of a broader pathology in the federal

criminal law toward overcriminalization and

excessive punishment. Cf. Yates v. United States, 135

S. Ct. 1074, 1100 (2015) (Kagan, J., dissenting) (The

“real issue [is] overcriminalization and excessive

punishment in the U.S. Code.”).

To avoid or limit the ACCA’s harshest and most

irrational applications, its scope at least should be

properly cabined to limit its reach to only the most

dangerous armed career criminals clearly targeted by

Congress. As discussed below, the ACCA’s force

clause was never intended to apply to reckless

conduct. Instead, Congress’s focus was on giving

prosecutors a tool—to be used sparingly—to protect

the public from truly violent, recidivist career

offenders who have shown a penchant for

intentionally inflicting serious physical harm against

others using weapons and who would pose a real

danger to society if not incarcerated.

14

II.

ABSENT A CLEAR STATEMENT TO THE

CONTRARY, COURTS SHOULD PRESUME THAT

CRIMINAL STATUTES REQUIRE KNOWING OR

INTENTIONAL CONDUCT

A. The ACCA’s Force Clause Unambiguously

Distinguishes Between Intentional and

Reckless Conduct Resulting in Harm

As Petitioner ably explains, see Pet. Br. at 21–30,

the ACCA’s plain language unambiguously forecloses

imposition of a sentencing enhancement based on

crimes that could be committed with a mens rea of

recklessness. Instead, only crimes that require, as an

element, the intentional use of substantial,

purposeful, violent force against the person of another

qualify to make someone an “armed career criminal.”

To be sure, this Court has “held that reckless

assaults—for example, a husband hurling ‘a plate in

anger against the wall near where his wife is

standing,’ which causes the shards to ricochet and

injure her—involve ‘the use . . . of physical force’ as

that phrase is used in [Section] 921(a)(33)(A).” United

States v. Harper, 875 F.3d 329, 331 (6th Cir. 2017)

(quoting Voisine v. United States, 136 S. Ct. 2272,

2278–79 (2016)). But see Voisine, 136 S. Ct. at 2284

(Thomas, J., dissenting) (“When a person talks about

‘using force’ against another, one thinks of intentional

acts—punching, kicking, shoving, or using a weapon.

Conversely, one would not naturally call a car

accident a ‘use of force,’ even if people were injured by

the force of the accident. As Justice Holmes observed,

‘[E]ven a dog distinguishes between being stumbled

over and being kicked.’” (quoting Oliver Wendell

Holmes, Jr., The Common Law 3 (1881)).

15

But notwithstanding Voisine’s interpretation of

the phrase “the use of physical force,” as used in a

different statute,8 to only require a mens rea of

recklessness, the ACCA’s force clause requires more—

namely, the “use of physical force against the person

of another[.]” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis

added);9 see Jeffrey A. Turner, Note, Reestablishing a

Knowledge Mens Rea Requirement for Armed Career

Criminal Act “Violent Felonies” Post-Voisine, 72 Vand.

L. Rev. 1717, 1731–44 (2019) (explaining why

Voisine’s narrow holding turning on the word “use”

and its reasoning do not extend to the ACCA).

“While the word ‘use’ by itself is indifferent as to

whether the actor has the mental state of intention,

knowledge, or recklessness, the subsequent phrase

against the person of another arguably conveys the

need for the perpetrator to be knowingly or

purposefully (and not merely recklessly) causing the

victim’s bodily injury.” United States v. Middleton,

883 F.3d 485, 498 (4th Cir. 2018) (Floyd, J., concurring

in part and concurring in the judgment) (cleaned up);

accord Walker, 931 F.3d at 469 (Kethledge, J.,

dissenting from denial of rehearing en banc)

(explaining that the ACCA force clause’s “against the

person of another” language requires that the

8 But see Voisine, 136 S. Ct. at 2290 (Thomas, J., dissenting) (“[A]

‘use of physical force’ has a well-understood meaning applying

only to intentional acts designed to cause harm.”).

9 “Voisine expressly did not decide whether reckless conduct falls

within the scope of § 16(a) and instead confirmed that it did not

foreclose a different interpretation of that statute.” United

States v. Orona, 923 F.3d 1197, 1203 (9th Cir. 2019), reh’g

granted, 942 F.3d 1159 (9th Cir. 2019).

16

defendant act knowingly or intentionally with respect

to the harm against another); cf. Leocal v. Ashcroft,

543 U.S. 1, 9 (2004) (“The key phrase in [18 U.S.C.]

§ 16(a)—the ‘use . . . of physical force against the

person or property of another’—most naturally

suggests a higher degree of intent than negligent or

merely accidental conduct.”).

The ACCA’s title, the “Armed Career Criminals

Act,” further underscores the statute’s focus:

protecting society from dangerous armed career

criminals who, on purpose and by design, use firearms

and other weapons to perpetrate violent crimes

against others. “As suggested by its title, the [ACCA]

focuses upon the special danger created when a

particular type of offender—a violent criminal or drug

trafficker—possesses a gun.” Begay v. United States,

553 U.S. 137, 146 (2008); see United States v. Begay,

470 F.3d 964, 981 n.3 (10th Cir. 2006) (McConnell, J.,

dissenting in part) (explaining “the title—the ‘Armed

Career Criminal Act’—was not merely decorative”),

overruled by 553 U.S. 137 (2008); see also Yates, 135

S. Ct. at 1090 (Alito, J., concurring in the judgment)

(“Titles can be useful devices to resolve doubt about

the meaning of a statute.” (cleaned up)). The ACCA’s

“title is especially valuable here because it reinforces

what the text’s nouns and verbs independently

suggest,” id., namely, that only crimes where the

perpetrator knowingly or purposely causes the victim

bodily injury can be ACCA enhancement predicates.

This makes sense because “[t]he ACCA aims at

state offenses that ‘show an increased likelihood that

the offender is the kind of person who might

deliberately point the gun and pull the trigger,’ rather

than offenses that merely ‘reveal a degree of

17

callousness toward risk.’” Middleton, 883 F.3d at 499

(Floyd, J., concurring in the judgment) (quoting

Begay, 553 U.S. at 146). Reckless use of force

resulting in harm may give rise to criminal liability,

but it does not meet this test.10 See United States v.

Parson, 955 F.2d 858, 874 (3d Cir. 1992) (“The term

‘career offender’ implies an ongoing intent to make a

living through crime, and it is doubtful that one can

make a career out of recklessness.”); see generally

Turner, supra, at 1717 (arguing for a knowledge mens

rea requirement for ACCA-triggering “violent

felonies”). Instead, use of force against the person of

another with the intent and purpose of causing harm

is the sine qua non and touchstone for a “violent

felony” under the ACCA.

Congress’s decision to draw a sharp distinction

between reckless and intentional harm also reflects

the fundamental principle that intent matters in

assigning blameworthiness, as well as the bedrock

background presumption in the criminal law that

unless Congress clearly states otherwise, serious

10 Here, for example, whether Mr. Walker is subject to the ACCA

hinges on whether a Texas robbery conviction qualifies as a

“violent felony” under the ACCA’s force clause. See Tex. Penal

Code § 29.02(a)(1) (1974) (defining robbery, at the time of Mr.

Walker’s conviction, as a theft during which a person

“intentionally, knowingly, or recklessly causes bodily injury to

another”). This conviction shows why the ACCA’s force clause

requires more than reckless conduct. Theft is not an inherently

violent crime. Cf. Van Don Nguyen v. Holder, 571 F.3d 524, 530

(6th Cir. 2009) (holding that the theft of an automobile is not a

crime of violence under section 16(b) because Congress’s intent

is ambiguous).

18

criminal liability should only be imposed for knowing

or intentional harms.

B. The Role of Mens Rea in Distinguishing

Culpability Levels is Deeply Rooted in

Our System of Law

The ACCA’s force clause should be construed “in

light of the background rules of the common law, in

which the requirement of some mens rea for a crime is

firmly embedded.” Staples v. United States, 511 U.S.

600, 605 (1994). “The existence of a mens rea is the

rule of, rather than the exception to, the principles of

Anglo-American criminal jurisprudence.” Dennis v.

United States, 341 U.S. 494, 500 (1951).

The modern form of the principle that the accused

must have possessed the requisite mens rea at the

time of an action before that action can qualify as a

criminal offense dates to at least the thirteenth

century. See Richard G. Singer, The Resurgence of

Mens Rea: The Rise and Fall of Strict Liability, 30

B.C. L. Rev. 337, 338 n.4 (1989) (“There is no debate

that, by the middle of the thirteenth century when

Bracton wrote De Legibus Angelae, mens rea was

becoming necessary[.]”); see generally Michael Pepson,

Comment,

Therapeutic

Jurisprudence

in

Philosophical Perspective, 2 J. of Law, Phil. & Culture

239, 254–56 (2008). Indeed, by the end of the twelfth

century, English jurists had begun to pay attention to

the ancient Roman concepts of dolus and culpa, both

of which centered on the mindset of the accused.

See Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev.

974, 983 (1932) (“Bracton borrow[ed] ideas . . . directly

from the Code and Digest” both of which were Roman

legal texts.).

19

As the concept of mens rea became firmly

embedded in English criminal jurisprudence, so too

did the notion that the moral culpability of the

accused was necessary for conviction. Id. at 988–89.

Consequently, by the dawn of the seventeenth

century, mens rea was recognized “as a sine qua non

for criminal conviction.” Singer, supra, at 337–38.

And, as Blackstone would later write in the

eighteenth century, “an unwarrantable act without a

vicious will is no crime at all. To constitute a crime

against human laws there must be first, a vicious will,

and secondly, an unlawful act consequent upon such

vicious will.” 4 William Blackstone, Commentaries

*21.

The fulcrum of the criminal law’s impositions of

liability has historically turned on a finding that the

accused has made a blameworthy choice: “Actus non

facit reum nisimens sit rea.” See Sayre, supra, at 988.

As this Court put it:

The contention that an injury can

amount to a crime only when inflicted by

intention is no provincial or transient

notion. It is as universal and persistent

in mature systems of law as belief in

freedom of the human will and a

consequent ability and duty of the

normal individual to choose between

good and evil. A relation between some

mental element and punishment for a

harmful act is almost as instinctive as

the child’s familiar exculpatory “But I

didn’t mean to[.]”

20

United States v. Morissette, 342 U.S. 246, 250–51

(1952) (footnotes omitted). Accordingly, “[t]he law has

long used actors’ intent or purpose to distinguish

between two acts that may have the same result. . . .

Put differently, the law distinguishes actions taken

‘because of’ a given end from actions taken ‘in spite of’

their unintended but foreseen consequences.” Vacco

v. Quill, 521 U.S. 793, 802–03 (1997).

Importantly, mens rea does not merely play a

critical threshold gatekeeping role in distinguishing

between innocuous and criminal conduct at the guiltinnocence stage. Even when a defendant’s actions, by

all accounts, give rise to criminal liability, mens rea

performs an important additional function:

distinguishing the degree to which the defendant is

culpable and how blameworthy his or her actions are.

Mens rea has therefore historically played a vital role

in assigning the proper punishment proportional to an

offense.

“Mens rea, a principle central to our criminal law,

is crucial in linking punishment to individual

culpability. It is the bridge between morality and

law.” Hon. Jack Weinstein, et al., The Denigration of

Mens Rea in Drug Sentencing, 7 Fed. Sent. R. 121, 121

(1994). “The operation of the mens rea principle takes

on a special character at the sentencing stage. . . .

[O]ne might assume that concerns about the mens rea

principle fall away once a finding of guilt has

attached. In fact, the opposite is true.” United States

v. Cordoba-Hincapie, 825 F. Supp. 485, 521 (E.D.N.Y.

1993). “Commission of a blameworthy act is merely

the first of two culpability-related inquiries; it is also

necessary to ask whether the defendant’s act was

sufficiently blameworthy to warrant the penalties

21

afforded by the statute in question.” Stephen F.

Smith, Proportional Mens Rea, 46 Am. Crim. L. Rev.

127, 155 (2006). Unless Congress clearly states

otherwise, “‘[i]nnocence’ will never be fully protected

until courts recognize that mens rea must, to the

maximum extent possible, guarantee both culpability

and proportionality for every potential federal

defendant[.]” Id.

By way of example, as one commentator aptly put

it in the context of homicide:

The failure to distinguish between those

who intend to take life and those who do

not, or between those who intend to

inflict gratuitous suffering and those

who do not, or between those who kill in

order to further a felony and those who

do not, creates a difficulty which extends

well beyond lack of theoretical

congruence. The distinctions between

intent, recklessness, negligence, and

pure accident permeate the criminal law.

They are the primary criteria by which

society grades offenses. For any given

prohibited result, if society makes a

distinction at all . . . it always treats the

person whose purpose was to produce

that result as the most serious offender.

Perhaps the main reason for this is that

choice underlies any theory of desert.

Daniel Givelber, The New Law of Murder, 69 Ind. L.J.

375, 421–42 (1994); see also Stephen F. Smith,

“Innocence” and the Guilty Mind, 69 Hastings L.J.

1609, 1635 (2018) (“Assault, in any form, is morally

22

blameworthy, yet modern legislatures often peg the

level of offense and punishment for particular types of

assaults to mens rea. Basic assault is a crime, often

punished as a misdemeanor, but the penalties for

assault increase based on mens rea: intent to inflict

serious bodily harm, rape, or kill results in felony

convictions

and

progressively

more

severe

penalties.”). Indeed, “some of the law’s harshest

punishments are often (and have long been) reserved

for intentional wrongs precisely because to intend

something is to endorse it as a matter of free will—

and freely choosing something matters.” Neil Gorsuch

et al., A Republic, If You Can Keep It 206 (2019).

So, too, with the ACCA’s force clause: those who

commit crimes with the intent to cause bodily harm to

others deserve a more severe sanction than those who

recklessly do so because some actions that result in

harm are less blameworthy than others. And reckless

conduct is less blameworthy than intentional conduct.

This makes sense because “[p]lainly, a meaningful

analytical distinction does exist between intending

and foreseeing a consequence.” Id.

Drunk driving, for example, may lead to terrible

consequences, and there is no question that criminal

sanctions of varying degrees may be appropriate

penalties. But a defendant who drives drunk and gets

into an accident that results in bodily harm to

another—without any intention of doing so—is a far

cry from a defendant who on purpose shoots another

person with the intent to kill them. See Leocal, 543

U.S. at 13 (noting, for purposes of 18 U.S.C. § 16, that

certain DUI statutes “do not require any mental state

with respect to the use of force against another

person, thus reaching individuals who were negligent

23

or less” and consequently do not qualify as crimes of

violence).

“[T]he distinction between knowing or intentional

conduct, on the one hand, and reckless conduct, on the

other, is one of the more familiar in criminal law. And

a desire to simplify . . . [courts’] own application of the

law is hardly good enough reason to double a man’s

Guidelines range[.]” Harper, 875 F.3d 329, 333 (6th

Cir. 2017). There is a material difference in the

culpability of those who specifically intend to cause

bodily harm to other human beings and those whose

actions negligently or recklessly cause harm. A pursesnatcher who intends to steal the purse for the

purpose of obtaining money and accidentally causes

harm to the purse owner in the process has certainly

committed a crime deserving of punishment. But

such conduct is not, as a matter of degree, as

blameworthy as that of a purse-snatcher who, on

purpose, violently attacks the victim with the specific

intent of harming her. The former “lower grade

offenders,” who do not intend to cause physical harm,

“do not bear the hallmarks of being the kind of people

who are likely to point a gun and pull the trigger[.]”

See Stokeling v. United States, 139 S. Ct. 544, 559

(2019) (Sotomayor, J., dissenting).

C. There

Should

Be

a

Background

Presumption in Favor of a Knowledge or

Intent Mens Rea for Statutes Like the

ACCA that Expose Defendants to Severe

Penalties

“[D]etermining the mental state required for

commission of a federal crime requires construction of

the statute and inference of the intent of Congress.”

24

Staples, 511 U.S. at 605 (cleaned up). Accordingly,

this Court has “stated that offenses that require no

mens rea generally are disfavored and . . . some

indication of congressional intent, express or implied,

is required to dispense with mens rea as an element

of a crime.” Id. at 606 (cleaned up).

This Court has not hesitated to “read a state-ofmind component into an offense even when the

statutory definition did not in terms so provide.”

United States v. U.S. Gypsum Co., 438 U.S. 422, 437

(1978). “The fact that the statute does not specify any

required mental state . . . does not mean that none

exists. . . . The central thought is that a defendant

must be blameworthy in mind before he can be found

guilty, a concept courts have expressed over time

through various terms such as mens rea, scienter,

malice aforethought, guilty knowledge, and the like.”

Elonis v. United States, 135 S. Ct. 2001, 2009 (2015)

(cleaned up). “[A] severe penalty is a further factor

tending to suggest that Congress did not intend to

eliminate a mens rea requirement.” Staples, 511 U.S.

at 618.

Of course, subject to other constitutional limits on

Congress’s authority to criminalize conduct, Congress

has the power to clearly specify a low mens rea for a

malum prohibitum crime carrying severe penalties.

And, unfortunately, Congress has done so all too

often. Under our system of government, Congress

may pass stupid laws that are nonetheless

constitutional. “Justice Scalia once said that he

wished all federal judges were given a stamp that read

‘stupid but constitutional.’” Brown v. Chi. Bd. of

Educ., 824 F.3d 713, 714 (7th Cir. 2016).

25

But absent a clear congressional statement to the

contrary, “[c]rimes for which Congress has prescribed

severe penalties should require correspondingly high

levels of mens rea (such as purpose or knowledge) so

that offenders will be seriously blameworthy. Only

then will convicted offenders be morally deserving of

the stiff penalties federal law routinely affords.”

Smith, Innocence, supra, at 1660. At the least, ACCA

enhancements should be reserved for truly “violent

felonies” in which the defendant knowingly or

intentionally harmed his or her victim. See Turner,

supra, at 1747 (“[I]n an era where government and

society are recognizing the perils of mass

incarceration, an express knowledge requirement

would ensure that the ACCA imposes fifteen-year

mandatory minimum sentences only on the most

dangerous offenders.”).

Particularly given that imposition of the ACCA

enhancement carries with it a fifteen-year mandatory

minimum, coupled with the ACCA’s focus on

incapacitating truly dangerous, armed career

criminals, a default mens rea of knowingly and

purposely using force to harm another person should

be presumed here. 11

11 The Model Penal Code’s default “recklessness” mens rea is ill

suited to the ACCA given its extreme harshness and literal focus:

armed career criminals. See generally Model Penal Code

§ 2.02(3) (establishing recklessness as the statutory default for

culpability if the statute does not otherwise provide a mens rea).

26

III.

UNDER THE RULE OF LENITY, THE ACCA’S

FORCE CLAUSE MUST BE NARROWLY

CONSTRUED

If there were any doubt whether “use of force

against the person of another” necessarily limits the

ACCA’s force clause to intentional, as opposed to

reckless, conduct, the rule of lenity demands that the

statute be construed narrowly in favor of Mr. Walker.

“[A]mbiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.” Yates,

135 S. Ct. at 1088 (cleaned up); see, e.g., Begay, 553

U.S. at 148 (Scalia, J., concurring in the judgment)

(“[B]ecause I cannot say that drunk driving clearly

poses such a risk (within the meaning of the statute),

the rule of lenity brings me to concur in the judgment

of the Court.”). Under the rule of lenity, “ambiguities

about the breadth of a criminal statute should be

resolved in the defendant’s favor. That rule is

‘perhaps not much less old than’ the task of statutory

‘construction itself.’” United States v. Davis, 139 S. Ct.

2319, 2333 (2019) (quoting United States v.

Wiltberger, 18 U.S. 76, 5 Wheat. 76, 95 (1820)

(Marshall, C. J.)).

“The rule of lenity requires ambiguous criminal

laws to be interpreted in favor of the defendants

subjected to them.” United States v. Santos, 553 U.S.

507, 514 (2008); see also Leocal, 543 U.S. at 11 n.8

(reasoning that “[e]ven if § 16 lacked clarity” on

whether negligent or strict-liability crimes were

crimes of violence, the Court “would be constrained to

interpret any ambiguity in the statute in petitioner’s

favor”). Thus, “when there are two rational readings

of a criminal statute, one harsher than the other,

27

[courts] are to choose the harsher only when

Congress has spoken in clear and definite language.”

McNally v. United States, 483 U.S. 350, 359–60

(1987). As Justice Scalia explained: “This venerable

rule not only vindicates the fundamental principle

that no citizen should be held accountable for a

violation of a statute whose commands are uncertain,

or subjected to punishment that is not clearly

prescribed. It also places the weight of inertia upon

the party that can best induce Congress to speak more

clearly and keeps courts from making criminal law in

Congress’s stead.” Santos, 553 U.S. at 514.

The rule of lenity dictates that the ACCA’s force

clause cannot be triggered by reckless conduct. See,

e.g., United States v. Rose, 896 F.3d 104, 109–10 (1st

Cir. 2018) (“[T]he rule of lenity brought us to the

conclusion that Maine reckless aggravated assault

was not a violent felony under ACCA’s force clause.”);

United States v. Griffin, No. 07-28-1, 2018 U.S. Dist.

LEXIS 159377, at *15 (E.D. Pa. Sept. 18, 2018)

(explaining “the rule of lenity counsels against

interpreting the ACCA to include reckless conduct”);

see also Yates, 135 S. Ct. at 1088 (invoking the rule of

lenity when a statutory term’s definition meant the

difference between up-to-twenty years in prison and

no liability).

It is simply wrong for Mr. Walker, and those

similarly situated, to “languish[] in prison” without

“the lawmaker ha[ving] clearly said they should.”

United States v. Bass, 404 U.S. 336, 348 (1971). “[I]t

is appropriate, before . . . [the Court] choose[s] the

harsher alternative, to require that Congress should

have spoken in language that is clear and definite.”

Yates, 135 S. Ct. at 1088 (quotation marks omitted));

28

see Sessions v. Dimaya, 138 S. Ct. 1204, 1225–27

(2018) (Gorsuch, J., concurring in part and in the

judgment). Because the ACCA’s force clause does not

clearly specify that the qualifying predicate “violent

felonies” may be committed with a mens rea of

recklessness, only those crimes that necessarily

require purposeful and intentional violence against

the person of another as an element of the offense can

trigger the ACCA enhancement.

CONCLUSION

The Court should rule in favor of Petitioner.

Respectfully submitted,

RYAN P. MULVEY

Counsel of Record

MICHAEL PEPSON

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

rmulvey@afphq.org

Counsel for Amicus Curiae

January 13, 2019