By Kelley Keefer and Linus Chan
Justice Alito’s woeful tale of a misguided European driver in his dissenting opinion of Mathis v. United States is presented as a criticism to the Supreme Court’s categorical approach jurisprudence. No. 15-6092, slip op. dissent at 1 (J. Alito dissenting) (U.S. Sup. Ct., June 23, 2016). And while one (and the majority) may disagree as to whether Taylor v. United States, 495 U.S. 575 (1990), really was a wrong turn, the 26 years since the publication of Taylor has nonetheless proven to be an interesting journey. Mathis provides the latest attempt by the Court to explain how to apply the “modified” categorical approach alluded to in Taylor. While Shepherd v. United States, 544 U.S. 13 (2001), made clear that only court records can be examined after deciding that a statute was divisible, Descamps v. United States, 133 S.Ct. 2276 (2013), clarified that the statutory language is key to deciding whether a crime was “divisible.” Justice Elena Kagan in a 5-3 decision ruled that a statute’s elements—and only elements—determine whether or a not a particular conviction can qualify for an ACCA enhancement or removal from the United States. [For a brief discussion of how this case came to the Supreme Court, please take a look at a prior post from this blog, The Categorical Approach Returns to the Supreme Court by Nicholas Anderson and Linus Chan. For a more thorough analysis of the categorical and modified categorical approach works, please review the Supreme Court’s decision in Descamps.]
The categorical approach and the modified categorical approach
When a non-citizen is convicted of a crime, the first step an immigration authority must decide is whether or not that conviction qualifies the person for removal from the United States. Because Congress in the vast majority of situations refers to a person’s “conviction” and not to the “commission” or “acts” a comparison between the statute that defined the crime a person was convicted of, and a federal definition that creates the consequence of removal becomes necessary. In a nutshell this is the categorical approach. However, because states often define crimes not just differently from each other, but also from federal definitions, the comparisons can be difficult. One commonplace issue is deciding whether a state crime is “divisible” in that it actually creates a set of crimes, with one of them qualifying for removal (or sentencing enhancement), or whether it just defines a crime more broadly and therefore not qualify for sentencing or immigration consequences. This difficulty has caused quite a bit of complexity and disagreement over the years. After the Supreme Court’s decision in Descamps restricted the divisibility analysis to statutory language and “disjunctive phrases” of the statute, lower courts have split about whether or not those statutory disjunctive phrases needed to actually create separate crimes (elements only) or if the disjunctive phrases can refer to alternative means to commit the same crimes (means analysis).
Elements v. means: Separate crimes, or just a different way to commit the same crime
So what exactly is the difference between a means and an element? Unfortunately, most statutes defining crimes do not come with a diagram that labels which terms are elements and which are not. Mathis used an overarching definition of an element; it is an aspect of the crime that (a) for trial the jury must find beyond a reasonable doubt or by (b) plea be admitted to in order to qualify for conviction. See Mathis, slip op at 2 (citing to Richardson v. United States, 526 U.S. 813 , 817(1999)).
While generally useful, this definition isn’t always easy to apply. However, the Mathis court does provide help by citing to past precedent for guidance. For instance, in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Court defined an element in the following way, “the Court held that ‘any fact that increases the penalty for a crime ‘beyond the prescribed statutory maximum’ is an element of a crime and therefore ‘must be submitted to a jury, and proved beyond a reasonable doubt.’” Mathis, slip op. at 13. This means that if a portion of the criminal definition could result in a higher punishment, then applying Apprendi, it must also be an element of the crime. If assaults normally provides for a year-long sentence, but if committed with a firearm the sentence range increases to five years, then the “firearm” part of the definition becomes an element.
Another helpful hint, is whether or not a jury is required to unanimously find something to be true, using the definition of elements found in Richardson. (Mathis. slip op. at 5, dissent at 4-5 (J. Breyer dissenting)). If a jury has to unanimously agree that something is true for a conviction, then it qualifies as an element. This means we have essentially four guidelines to decide whether a statutory term qualifies as an element: (1) if it must be proven to a jury beyond a reasonable doubt, (2) if its existence must be admitted by plea to allow for conviction, (3) if it triggers a higher or enhanced penalty, and (4) if the jury must all agree unanimously to its existence.
On the other hand, defining what constitutes a “means” is a bit trickier. In some ways Justice Kagan approaches the ‘means’ issue by looking at what is not an element. She continuously defines “means” as “non-elemental facts” that describe how a crime can be committed, but is not necessary for conviction. Mathis, slip op. at 14. These definitions are well and good, but how does this work when confronted with a client, defendant or potential deportee’s situation?
Means vs. elements: a practical application
Much of the disagreement between the majority’s decision and the dissent written by Justice Breyer rests on how the elements-only test would work practically. Justice Breyer believes that discerning elements can be tedious and difficult work for a sentencing or immigration judge, calling it often not practicable and a “time-consuming legal tangle.” Mathis, slip op. dissent at 10 (J. Breyer dissenting)). Justice Kagan dismisses such concerns and outlines what she thinks is more likely to happen.
In deciding whether a statute has delineated elements or means, the majority opinion asks the trier to turn to three potential resources: 1) state law, which may include state supreme court decisions such as with the Iowa statute at issue in Mathis, or may include model jury instructions, 2) the statutory language itself as some statutes do inform the reader what are elements, or finally 3) the record of conviction itself. This last resort requires additional discussion, but before we get there, let’s provide an example of how this would work. The Court itself uses two examples; the first deals with deadly weapons, and the second, deals with mens rea.[1] Let’s combine both examples for our own hypothetical.
For instance, let’s say that Ms. X is convicted of felony assault with a deadly weapon in a hypothetical state of ‘Categorica.’ In Categorica, anyone is guilty of 2nd degree assault if they “(1) commit an act with intent to cause immediate bodily harm of another; or (2) negligently inflicts bodily harm upon another with the use of a deadly weapon. Another statute defines ‘deadly weapon’ as a firearm, knife, or pair of nunchakus.
People convicted of either a firearm offense or a “crime of violence” face removal from the United States. Assume for our purposes, that a crime can only be a “crime of violence” if it is committed with an intent to cause bodily harm. A firearm offense is defined to be any crime that requires the use of a firearm. Mrs. X is now facing deportation, so how would an immigration judge decide if Mrs. X’s crime qualifies her for removal—either as a crime of violence or a firearms offense?
First, we need to figure out what are the “elements” of 2nd degree assault. If the “intent to cause bodily harm” versus “negligently causes” is in fact an element of the crime, then an immigration court could look at the record to decide whether or not Mrs. X was convicted of clause 1 or clause 2. However, if “intent to cause bodily harm” is just listing a means to commit the larger crime of 2nd degree assault, then it is not an element and Mrs. X has not committed a crime of violence. Similarly, if the deadly weapon clause is an element and the type of weapon is also an element, then additional inquiry into the record may be allowed to figure out if Mrs. X committed a firearms offense.
At the outset, it would seem from the way that the statute is written, the “intent to cause bodily harm” language is an element because the clauses define two separate crimes, while the firearm clause appears to just be a means to an offense, especially as the term is part of referential statute and not in the main language. However, Mathis discourages sole reliance on the structure or appearance of a statutory definition. The immigration judge must research to see if a state court has decided whether or not the mens rea requirement of intent, which differentiates clauses (1) or (2), requires jury unanimity. If a state court ruled that no unanimity is required, and that the state can convict without proving either intentionality or negligence, then despite appearances, clauses (1) and (2) are simply alternative means of committing the single mens rea element, thus the crime is not divisible and Mrs. X is not convicted of a crime of violence. Without direct case law, a model jury instruction that instructs juries to convict if a person either commits the crime with intent, or negligently would also indicate that the clause is a means and not an element.
What happens if there is no state authority? For instance, what if no state court has ruled on whether the type of weapon is required to be found beyond a reasonable doubt? The immigration judge can then examine the statute to see if there is a sentencing enhancement for 2nd degree assault if it was committed with a firearm. If 2nd degree assaults normally have a 6 month sentence, but a separate provision allows for enhancement up to 1 year if the crime is committed with a firearm, then that would indicate that the firearm component is an element, for we know that the enhancement must be proven beyond a reasonable doubt according to Apprendi.
The most difficult situation is if there is no direct state authority. In those situations Mathis directs judges, both sentencing and immigration, to “peek” at the record of conviction. At the same time, Mathis also warns that this peeking is only to help decide whether something is an element or means, not to find out what the person actually did to commit the crime. This area will likely prove to cause confusion as this “peeking” will require judges to interpret the meaning of phrases used in complaints and pleas.
Finally, while the dissent and majority disagree at how often a non-definitive answer can be reached, they both agree that sometimes it might be impossible to decide which statutory phrases are means and which are elements. For the majority, this scenario just means that the government is unable to carry its burden to prove removability or enhanced sentences.
The Sixth Amendment, Apprendi v. New Jersey, and the categorical approach
Whether or not the application of this elements-only approach will prove workable will be borne out over the next few years. But Mathis is an interesting case not just for its directives to administrative agencies and lower courts, but also for the different justifications used by the different justices in the majority.
Justice Kagan notes that “Our precedents make this a straightforward case”. Mathis, slip op. at 18). And yet she does not rely solely on stare decisis to justify the elements analysis. Instead the majority opinion refers to three other justifications, the first is statutory language, the second is the Sixth Amendment, and the third is fairness to criminal defendants.
The statutory language justification merely recites past decisions that highlight the word “conviction.” The reference to fairness concerns for defendants were discussed by the Descamps majority, and highlight that non-essential facts may not be contested or give enough notice to defendants about their attendant consequences. Id. at 10. The Sixth Amendment discussion, specifically over the holding and meaning of Apprendi however provide an interesting discussion with potentially long-reaching consequences.
Without going too much into detail in this post, the discussion of Apprendi and the Sixth Amendment may give strong indication of what might be the next big fight on the categorical approach. As noted earlier, the Supreme Court had set out a rule in Apprendi, that an enhanced sentence based on certain factual findings, must be given to a jury and proven beyond a reasonable doubt. Beginning in Shepherd and extending to Descamps, Justice Thomas argued that the entirety of ACCA violates Apprendi, (Descamps, concurring opinion Justice Thomas), for it allowed federal judges to find the fact of a prior conviction in order to enhance a sentence. Justice Thomas makes the same argument again here in Mathis. Mathis, slip op. concurrence at 1 (J. Thomas, concurring). However, unlike past opinions of the categorical approach which mostly left Apprendi in the sidelines, it gets much more discussion.
The majority decision raises the concern that a non-elements approach would essentially allow sentencing judges to find facts separate from the conviction itself potentially violating Apprendi. Justice Kennedy in a concurring opinion argues that Apprendi shouldn’t be discussed at all, as the categorical approach is the result of statutory language and not the Sixth Amendment. Mathis, concurrence slip op. at 2 (J. Kennedy, concurring). Justice Breyer on the other hand argues that a means approach that relies on statutory language and charging documents would not violate Apprendi at all. Mathis, slip op. dissent at 12 (J. Breyer, dissenting). Whether or not Justice Kennedy’s concurrence is borne out has potentially long-reaching applications for crimmigration. If Apprendi plays a central role in all applications of the categorical approach and not just in the sentencing context, then it might provide further proof that immigration consequences are moving further within the ambit of the Sixth Amendment.
Kelly Keefer is a rising 3L student at the University of Minnesota School of law and enrolled as a student director of the Detainee Rights Clinic. Linus Chan is a Visiting Associate Professor of Clinical Law at the University of Minnesota and teaches the Detainee Rights Clinic.
[1] If there was any doubt that this analysis would apply to the immigration context, this is dispelled by the Court using an immigration hypothetical.
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