Amicus Curiae Brief — Charles Borden, Jr., Petitioner v. United States

No. 19-5410

IN THE

Supreme Court of the United States

_________________________________________________

CHARLES BORDEN, JR.,

Petitioner,

v.

UNITED STATES,

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

May 4, 2020

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 ........ 15

A.

The ACCA’s Force Clause Unambiguously

Distinguishes Between Intentional and

Reckless Conduct Resulting in Harm....... 15

B.

The Role of Mens Rea in Distinguishing

Culpability Levels is Deeply Rooted in

Our System of Law .................................... 19

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 ........................................ 25

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

Clause Must be Narrowly Construed ............... 27

IV. Mass Overincarceration Threatens Public

Health ................................................................ 29

CONCLUSION ............................................................... 31

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Begay v. United States,

553 U.S. 137 (2008) ..................................... 18, 28

Brown v. Chicago Board of Education,

824 F.3d 713 (7th Cir. 2016) ............................. 26

Dennis v. United States,

341 U.S. 494 (1951) ........................................... 19

Elonis v. United States,

135 S. Ct. 2001 (2015) ....................................... 26

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) ......................................... 8

Leocal v. Ashcroft,

543 U.S. 1 (2004) ................................... 17, 24, 28

McNally v. United States,

483 U.S. 350 (1987) ........................................... 29

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ....................................... 30

Staples v. United States,

511 U.S. 600 (1994) ............................... 19, 25, 26

iii

State v. Cope,

No. M2014-00775-CCA-R3-CD,

2015 WL 4880347

(Tenn. Crim. App. Aug. 14, 2015)..................... 24

Stokeling v. United States,

139 S. Ct. 544 (2019) ......................................... 25

United States v. Bass,

404 U.S. 336 (1971) ........................................... 29

United States v. Begay,

470 F.3d 964 (10th Cir. 2006) ........................... 18

United States v. Cordoba-Hincapie,

825 F. Supp. 485 (E.D.N.Y. 1993) .................... 22

United States v. Davis,

139 S. Ct. 2319 (2019) ....................................... 28

United States v. Griffin,

No. 07-28-1, 2018 U.S. Dist. LEXIS

159377 (E.D. Pa. Sept. 18, 2018) ...................... 29

United States v. Harper,

875 F.3d 329 (6th Cir. 2017) ....................... 16, 24

United States v. Middleton,

883 F.3d 485 (4th Cir. 2018) ....................... 17, 18

United States v. Morissette,

342 U.S. 246 (1952) ........................................... 21

iv

United States v. Orona,

923 F.3d 1197 (9th Cir. 2019) ........................... 17

United States v. Parson,

955 F.2d 858 (3d Cir. 1992) .............................. 18

United States v. Rose,

896 F.3d 104 (1st Cir. 2018) ............................. 29

United States v. Santos,

553 U.S. 507 (2008) ..................................... 28, 29

United States v. Scott,

954 F.3d 74 (2d Cir. 2020) ................................ 28

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) ........................................... 26

United States v. Yirkovsky,

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

United States v. Young,

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

Vacco v. Quill,

521 U.S. 793 (1997) ........................................... 21

Voisine v. United States,

136 S. Ct. 2272 (2016) ....................................... 16

Walker v. United States,

140 S. Ct. 953 (2020) ........................................... 6

Walker v. United States,

769 F. App’x 195 (6th Cir. 2019)....................... 11

v

Walker v. United States,

931 F.3d 467 (6th Cir. 2019) ................... 7, 11, 17

Yates v. United States,

135 S. Ct. 1074, 1100 (2015) ........... 15, 18, 28, 29

Statutes

18 U.S.C. § 924(e)(2)(B)(i) ...................................... 17

Rules

Model Penal Code § 2.02(3) ................................... 27

Other Authorities

Amended Plea Agreement ¶ 4(c),United

States v. Borden, No. 17-CR-120 (E.D.

Tenn. filed Jan. 10, 2018), ECF No. 22 ............ 14

Benjamin Levin, Guns and Drugs,

84 Fordham L. Rev. 2173 (2016) ...................... 15

COVID-19 Coronavirus, Fed. Bureau of

Prisons, https://bit.ly/3eKDo27......................... 31

Daniel Givelber, The New Law of Murder,

69 Ind. L.J. 375 (1994) ...................................... 23

Francis Bowes Sayre, Mens Rea,

45 Harv. L. Rev. 974 (1932) .............................. 20

vi

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) ............................................ 22

Inmate Age, Fed. Bureau of Prisons,

https://bit.ly/3azrip4.......................................... 31

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)................ 17, 19, 27

Josiah Rich et al., We Must Release

Prisoners to Lessen the Spread of

Coronavirus, Wash. Post, Mar. 17, 2020.......... 31

Letter from Public Health Experts to the

President Donald J. Trump (Mar. 27,

2020), available at https://bit.ly/351IpPp......... 31

Michael Pepson, Comment, Therapeutic

Jurisprudence in Philosophical

Perspective,

2 J. of Law, Phil. & Culture 239 (2008) ........... 20

vii

Neil Gorsuch et al.,

A Republic, If You Can Keep It (2019) ....... 23, 24

Paul G. Cassell & Erik Luna, Sense and

Sensibility in Mandatory Minimum

Sentencing, 23 Fed. Sent. R. 219 (2011)........... 13

Resentencing Tr., United States v. Walker,

No. 07-20243 (W.D. Tenn. June 28,

2017), ECF No. 148 ................................... 8, 9, 10

Restatement (Second) of Torts § 500 cmt. f

(Am. Law Inst. 1965) ........................................ 25

Rich Schapiro, 1st Prison Inmate to Die of

Coronavirus Wrote Heartbreaking Letter

to Judge, NBC News, Apr. 5, 2020,

https://nbcnews.to/2yBQGNN .......................... 31

Richard G. Singer, The Resurgence of Mens

Rea: The Rise and Fall of Strict

Liability, 30 B.C. L. Rev. 337 (1989) .......... 19, 20

Sentencing Tr., United States v. Walker, No.

07-20243 (W.D. Tenn. July 14, 2011),

ECF No. 124 ........................................................ 9

Sentencing Tr., United States v. Young, No.

12-45 (E.D. Tenn. May 9, 2013), ECF No.

41 ..................................................................... 6, 7

Stephen F. Smith, “Innocence” and the

Guilty Mind,

69 Hastings L.J. 1609 (2018) ...................... 23, 27

viii

Stephen F. Smith, Proportional Mens Rea,

46 Am. Crim. L. Rev. 127 (2006) ...................... 22

Stephen R. Sady & Gillian R. Schroff,

Johnson: Remembrance of Illegal

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

(2015). ............................................................ 5, 15

Stephen R. Sady, The Armed Career

Criminal Act—What’s Wrong with

“Three Strikes, You’re Out”?, 7 Fed.

Sent. R. 69, 69 (1994 ........................................... 5

William Blackstone, Commentaries ...................... 20

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.3, 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 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; 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.

AFPF believes that the real-world stakes are high

and radiate far beyond the specific facts of this

particular case. If allowed to stand, the Sixth Circuit’s

overbroad interpretation of the ACCA’s force clause to

extend to reckless conduct would wrongly extend its

reach to conduct often involving mishaps and

mistakes, such as falling asleep at the wheel or failing

to put a seat belt on a child. As a practical matter,

this would cruelly expand the universe of defendants

potentially subject to ACCA sentencing enhancement

for conduct as innocuous as possessing a few bullets,

which is only malum prohibitum for a subset of people

(i.e., convicted felons).

SUMMARY OF ARGUMENT

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-sizefits-all injustice. . . . [They] 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

3

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) (Stranch, J., concurring)

(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 public-health consequences of draconian

mandatory minimum statutes like the ACCA have

also come home to roost in tragic fashion, endangering

not only an aging and vulnerable prison population,

as well as prison staff, during the ongoing global

health emergency caused by COVID-19.

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

4

convictions (for which the defendant has already paid

a debt to society) supporting the fifteen-year

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 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 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. Borden (and

many others) 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).

6

Many cases showcase the gulf between the ACCA’s

putative purpose and its all-too-broad and irrational

sweep, which leads to unjust and arbitrary results. 2

Consider James Walker, who was sentenced to

fifteen years for the crime of possessing a handful of

bullets. (Sadly, after the Court granted cert in Mr.

Walker’s case, he passed away in January 2020.3 See

Walker v. United States, 140 S. Ct. 953 (2020).). His

case called 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

Victor Hugo, Les Misérables (1893). Or perhaps, as a

federal district judge in another case 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,

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 As a result of the district court’s resentencing of Mr. Walker to

time served after becoming unshackled from the ACCA, and Mr.

Walker’s pro bono attorneys’ efforts after the Sixth Circuit’s

erroneous decision, Mr. Walker was not incarcerated when he

passed away. Instead, he was free and with his family. This is

what is at stake here, if the Sixth Circuit decision stands.

7

2013) [hereinafter 05/09/13 Sentencing Tr.], ECF No.

41. Sadly, this is an all-too-common 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).

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. Mr. Walker’s case

is a perfect example of the ACCA’s harshness and

irrationality. He was punished not for his present

conduct but for his past crimes (for which he had

already served his sentence). 4 The most recent of the

state felonies that purportedly supported Mr.

Walker’s ACCA sentencing enhancement occurred in

1994—that is, twenty-five years ago. It was not until

2007—thirteen years later—that Mr. Walker was

4 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

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

charged under Section 922(g) as a felon-in-possession

simply for possessing thirteen bullets.

Tellingly, there was broad agreement 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 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.

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.

9

Again, as the district court emphasized in 2017,

Mr. Walker, without question, made mistakes. But he

also did 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 had battled earlier in

life, “so [over] the last ten years he’s been clean.”5 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 had 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

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 did just that, as

the district court found in 2017.

That was no small

accomplishment.

5

10

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

was “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

him to eighty-eight months of imprisonment—which

he had already served—and ordered his release from

custody.6 Yet under the ACCA, as interpreted by the

Sixth Circuit, Mr. Walker would have been sent 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

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

underscored 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

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

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 . . . 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

resulted in a shocking injustice for Mr. Walker.

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.

12

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

sentencing enhancement.7 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.”8 Id. at 634

(Stranch, J., concurring).

7 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.

8 “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

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

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.

Mr. Borden, too, fits into this pattern to a certain

degree. True enough, he pleaded guilty to being a

felon in possession of a firearm, which is a crime. But

the reason why Mr. Borden possessed the gun, while

not entirely innocent, was not for the purpose of

committing any violent acts. Instead, Mr. Borden

traded drugs for the gun, which he planned to sell for

money.9 While what Mr. Borden did, and admitted to

9 See Am. Plea Agreement ¶ 4(c), United States v. Borden, No. 17-

CR-120 (E.D. Tenn. filed Jan. 10, 2018), ECF No. 22.

14

doing,10 without question violates Section 922(g) and

constitutes a felony, that simply is not the type of

conduct Congress intended to target under the ACCA.

And, like Mr. Walker and others, the most recent

of the state felony convictions supporting the ACCA

enhancement against Mr. Borden here under the

“force clause” was ten years before he was charged as

a felon in possession.11 An ACCA-based mandatory

minimum simply does not fit comfortably with the

facts and circumstances of Mr. Borden’s case. This is

particularly so because, even in the absence of the

ACCA enhancement, the statutory maximum term of

imprisonment for a Section 922(g) violation is still ten

years. There is no rational reason why the district

court should not have at least had discretion to impose

a reasonable and appropriate term of imprisonment,

consistent with the Section 3553(a) factors and

applicable sentencing guidelines. Congress did not

intend for defendants like Mr. Borden to be caught

within the ACCA’s dragnet.

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

Relatedly, at sentencing, the government requested a

downward departure for Mr. Borden due to the substantial

assistance he provided to law enforcement, which was granted.

10

11 Mr. Borden was arrested for possessing a firearm on April 11,

2017. See Am. Plea Agreement ¶ 4(c). The three aggravated

assault convictions supporting enhancement under the ACCA’s

“force” clause occurred in 2002, 2003, and 2007, respectively. See

id. ¶ 4(g).

15

is also part of a broader pathology in the federal

criminal law toward 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 violent, recidivist career offenders who

have shown a penchant for intentionally inflicting

serious harm against others using weapons and who

would pose a real danger to society if not incarcerated.

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 18–23,

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.”

16

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)).

But notwithstanding Voisine’s interpretation of

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

different statute,12 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);13 see Jeffrey A. Turner, Note, Reestablishing a

12 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.”).

“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).

13

17

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 the ACCA force clause requires that the

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,

18

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

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. 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

19

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, 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.

20

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

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

from the Code and Digest,” which were Roman texts.).

As the concept of mens rea became firmly

embedded in English jurisprudence, so too did the

notion that the moral culpability of the accused was

required 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

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

21

the child’s familiar exculpatory “But I

didn’t mean to[.]”

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 function: distinguishing the

degree to which the defendant is culpable and how

blameworthy the 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

22

necessary to ask whether the defendant’s act was

sufficiently blameworthy to warrant the penalties

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 Stephen F. Smith, “Innocence”

23

and the Guilty Mind, 69 Hastings L.J. 1609, 1635

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

24

with respect to the use of force against another

person, thus reaching individuals who were negligent

or less” and consequently do not qualify as crimes of

violence). And it bears noting, as Petitioner explains,

under Tennessee law individuals have been convicted

of reckless aggravated assault for a variety of driving

infractions. See Pet. Br. 38–39; see also, e.g., State v.

Cope, No. M2014-00775-CCA-R3-CD, 2015 WL

4880347, at *6 (Tenn. Crim. App. Aug. 14, 2015)

(affirming reckless aggravated assault conviction

rejecting sufficiency challenge when defendant had

blood-alcohol level of 0.02, took Alprazolam

medication as prescribed, and ran red light causing

accident).

“[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

25

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

Stokeling v. United States, 139 S. Ct. 544, 559 (2019)

(Sotomayor, J., dissenting). The key point is that

“[r]eckless misconduct differs from intentional

wrongdoing in a very important particular. While an

act to be reckless must be intended by the actor, the

actor does not intend to cause the harm which results

from it.” Restatement (Second) of Torts § 500 cmt. f

(Am. Law Inst. 1965) (emphasis added).

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.”

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,

26

malice aforethought, guilty knowledge, and the like.”

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

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

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.”).

27

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. 14

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 the

statute be construed in favor of Mr. Borden. 15

“[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

14 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).

“[T]he burden is on the government to show that a prior

conviction counts as a predicate offense for the purpose of an

ACCA sentence enhancement.” United States v. Scott, 954 F.3d

74, 87 (2d Cir. 2020).

15

28

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,

[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

29

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 definition meant the difference between

up-to-twenty years in prison and no liability).

It is simply wrong for Mr. Borden, 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));

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.

IV.

MASS

OVERINCARCERATION

PUBLIC HEALTH

THREATENS

Although ultimately unnecessary to the resolution

of this case, it does bear brief mention that a proper

interpretation of the ACCA’s “force” clause to exclude

crimes that can be committed with a mens rea of

recklessness actually protects public safety, including

30

the safety of prison staff and health professionals, and

conserves medical supplies—and taxpayer resources.

As one commentator recently put it:

The spread of the coronavirus may

only be the tipping point for what can

happen when we fail to consider all

the costs and consequences of our

system of mass incarceration. We

justify locking people up to protect

public safety. Yet public safety will be

at even greater peril if we fail to

mitigate

risks

associated with

confining too many people in jails . . .

during a pandemic.

Josiah Rich et al., We Must Release Prisoners to Lessen

the Spread of Coronavirus, Wash. Post, Mar. 17, 2020,

https://wapo.st/2S353lc; see generally Rich Schapiro,

1st Prison Inmate to Die of Coronavirus Wrote

Heartbreaking Letter to Judge, NBC News, Apr. 5,

2020, https://nbcnews.to/2yBQGNN.

This particularly cruel collateral consequence

resonates here. As of May 3, 2020, 1,926 federal

inmates have confirmed positive test results for

COVID-19, and 38 federal inmate deaths have been

attributed to the virus. See COVID-19 Coronavirus,

Fed. Bureau of Prisons, https://bit.ly/3eKDo27 (last

visited May 4, 2020). Public health experts have

cautioned that federal prisons are “breeding grounds”

for COVID-19 that pose “significant health risks” to

the people in them. See Letter from Public Health

Experts to the President Donald J. Trump (Mar. 27,

31

2020), available at https://bit.ly/351IpPp. Almost 20

percent of federal inmates are over the age of 50. See

Inmate

Age,

Fed.

Bureau

of

Prisons,

https://bit.ly/3azrip4 (last visited May 4, 2020). Many

of these older inmates remain incarcerated due to

mandatory minimum sentences imposed pursuant to

statutes like the ACCA that are grossly

disproportionate to the crime of conviction.

CONCLUSION

The judgment of the court of appeals should be

reversed.

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

May 4, 2020