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June 23, 2016

"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."

The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here).   In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix.  Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post: 

Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....

Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....

A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.

The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.

June 23, 2016 at 02:11 PM | Permalink


Is it as strong an example of pointless formalism as declaring that being placed in indefinite detention for being a sex offender isn't "punishment?"

Posted by: Andrew Fleischman | Jun 23, 2016 3:12:55 PM

Boy what a reversal, not long ago Attempted Burgelary was a violent crime.

Goes to show that the Federal system will stretch things to any degree to increase sentences, no matter how stupid.

The feds couldnt figure out that owi wasnt a violent crime on their own.

We need to knicknthese Ausa in the jollies and start tossing judges as well.

Posted by: MidWestGuy | Jun 23, 2016 3:37:49 PM

The invented colloquy isn't up there with the famous Kozinski dissent, but it has honorable mention quality. The opening on Sabine Moreau's journey is high snark too. I don't pay TOO much attention to Alito opinions, but this seems a bit atypical for Alito. He's in high snark mode.

Posted by: Joe | Jun 23, 2016 9:11:53 PM

I don't know the right answer here as this is where all the parties seem to have fair points. My underlying problem is that the entire element/means distinction strikes me as highly artificial which makes me skeptical of the entire "categorical" approach. But I freely admit that I don't have any alternative to it. Perhaps the real problem here is the fact that Congress is trying to force an artificial unity on the myriad laws that exist: i.e, the ACCA itself is just a bad approach to crime policy.

What I do know is that Justice Ginsburg example arguing that the means/element distinction was valid convinced me of exactly the opposite.

Posted by: Daniel | Jun 24, 2016 9:21:15 AM

It's pretty Rich for Sam Alito to be complaining of pointless formalism.

Posted by: Ain't Nick | Jun 24, 2016 10:28:47 AM

Daniel, I don't think the "element/means" distinction is artificial at all, rather, as Justice Thomas contends, is simply an example of the core principles of Apprendi in action. A "means" doesn't elevate potential punishment above the Blakely max for a crime.

Doug, I know you are not a big fan of the word "element" , so let's use Scalia's phrase in Ring, "the essential facts supporting the level of punishment to which the def is exposed." (or close to that)

The bottom line of Mathis is, in my opinion, if we can't tell what crime a def committed in another state, the State can't use it to enhance sentence under ACCA because we don't know how it is treated in the state currently sentencing the def.

I plan to cite Mathis in several cases I am working on where I am arguing that a jury has to be unanimous on which two of more than two aggravating factors a jury has to find to elevate misdemeanor Fleeing to Elude Arrest to felonious Flee to Elude Arrest. Right now, our courts say if the jury agrees two ags exist, although they don't specify which two, a def is guilty of the greater crime.

NC's notion of "crime versus theory of crime" is mighty close to "element versus means". There can be multiple theories of how a def committed one crime, and the jury doesn't have to agree how many found which theory


Posted by: bruce cunningham | Jun 24, 2016 10:45:17 AM

Doug, concerning the Alito sentence used as the title, I think it illustrates that Alito still refuses to "get it" when it comes to Apprendi. And, disappointingly, Kennedy's opinion reveals he cannot get over his hostility to Apprendi.


Posted by: bruce cunningham | Jun 24, 2016 10:47:55 AM

I'm not surprised by Breyer's opinion (and Alito's opinion was a given), but I am surprised if the majority loses Ginsberg.

I think the categorical approach is still the best approach when we're not dealing with celebrated exceptions (which is what the Supreme Court sees). My biggest concern are cases where they use plea stipulations or (even worse) prosecutor statements of the evidence on guilty pleas. In the overwhelming majority of state guilty pleas, they're not concerned about federal collateral consequences to make it worth fighting some technical wording that the prosecutor might like but doesn't matter to the defense. I'd rather not throw out the baby with the bathwater just because there are some cases that slip through the cracks and don't get enhanced federal penalties and only face punishment from the state.

Posted by: Erik M | Jun 24, 2016 9:05:24 PM

I wish I could edit my post. I'll just add that the dissents do make for good law school reading material, which I consider a plus.

Posted by: Erik M | Jun 24, 2016 9:06:03 PM

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