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Enhanced Sentencing for Reckless Crimes Debated at Supreme Court

The justices heard arguments over whether crimes involving recklessness should carry a higher sentence under a controversial law that gives stiffer penalties to felons caught possessing firearms.

WASHINGTON (CN) — If a person swings a baseball bat in a joking manner, loses control and strikes their friend standing nearby, do those actions qualify as a reckless use of force? That was one hypothetical posed by Supreme Court Chief Justice John Roberts on Tuesday, when the high court explored the interpretation of a specific phrase in the Armed Career Criminal Act.

Charles Borden was caught with a gun during a traffic stop in April 2017 and pleaded guilty to illegal possession of a firearm. He had three prior convictions of aggravated assault with a weapon in Tennessee.

The government argued at Borden’s sentencing that because of those previous convictions, his punishment should follow guidelines from the ACCA — a much-scrutinized law that imposes mandatory minimum sentences on repeat violent offenders. The district court judge agreed.

Borden objected to his enhanced sentence of nine years and seven months, arguing the state needed to prove a higher criminal intent, or mens rea, standard for an increased penalty under the ACCA.

He appealed to the Sixth Circuit but the Cincinnati-based court affirmed his sentence, citing U.S. Supreme Court precedent in Voisine v. United States — a 2016 case involving a Maine domestic assault in which the court found that reckless conduct qualifies as use of force.

Kannon Shanmugam, an attorney with the firm Paul Weiss arguing for Borden at the high court Tuesday, said the case is squarely focused on the ACCA’s use of force clause, which he argued only applies to offenders who intentionally use physical force against another person.

People acting recklessly lack that intent, Shanmugam said, “because such a person is indifferent as to whether the force used falls on another person or on no one at all.”

As for Roberts’ hypothetical about an accidental bat assault, Borden’s attorney relied on another Supreme Court precedent from the 2004 case Leocal v. Ashcroft — a Florida drunk driving dispute in which the justices held a violent crime requires criminal intent greater than accidental conduct under the Immigration and Nationality Act.

“I don’t mean to hit him, I have no intent to hit him, it’s a joke, but unfortunately, the bat slips,” Roberts said, describing his imagined scenario.

“Well, I would say that in that circumstance you’ve used physical force and the force has fallen on the other person,” Shanmugam said. “And again, if you accept the government’s reasoning, I think it really would include not just reckless offenses but also negligent offenses. And of course, that was the whole point of the relevant reasoning in Leocal. The court made quite clear that it was excluding not just accidental offenses, but also negligent offenses.”

Deputy U.S. Solicitor General Eric Feigin argued that it “necessarily follows” that recklessly injuring another person is use of physical force.

“It makes no difference that in Voisine the phrase ‘against a domestic relation’ was the court’s own descriptive language, while here the phrase ‘against a person of another’ is Congress’ descriptive language,” Feigin said. “No matter who says it, as Justice [Elena] Kagan pointed out, it’s a natural way to refer to the object of the active reas of the crime.”

Roberts, again skeptical, asked about the expansive list of crimes that could be considered reckless under the government’s interpretation, including a mother forgetting to buckle her children’s seatbelt.

But Feigin said recklessness sentencing enhancements would only involve specific instances of a disregard of risk, like a person disregarding speed limits through a residential accident before being involved in a fatal accident.

“And you’re comfortable describing that activity as a crime of violence?” Roberts asked.

“The activity I just described, yes, your honor,” the government’s lawyer replied.

Feigin added: “There’s reckless conduct, like shooting into a crowded house, that I think everyone would describe as violent and there’s intentional conduct like an Agatha Christie-style, sedate-murder by poisoning someone’s tea, that I don’t think anyone would really describe as violent but that everyone agrees is covered.”

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