The Divisibility of Crime

64 Duke Law Journal Online (February 2015) pp. 95-119

Cardozo Legal Studies Research Paper No. 450

26 Pages Posted: 5 Mar 2015

See all articles by Jessica Roth

Jessica Roth

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: 2015

Abstract

Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions.

This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly. It shows that the decision is indeed having a significant effect on criminal sentencing, resulting in a steady flow of sentencing reversals and prospectively narrowing the class of defendants eligible for sentencing enhancements based on prior convictions. But more broadly, Descamps has called attention to the statutory specificity that legislators are capable of and the adjudicative clarity that courts can promote, if there are incentives for doing so. Until now, the Court has done little to encourage either. Thus, the opinion may push courts and legislators to think more carefully and systematically about what facts must be established to constitute a particular criminal offense, how such facts are established and recorded in the context of an adjudicative proceeding, and the consequences that flow from greater or lesser specificity. Ultimately, this impact may be felt not only in the context of applying recidivist statutes and sentencing enhancements, but also in other contexts that require attention to the basis for a criminal conviction, including the doctrine governing what constituent facts of a crime require jury unanimity and claims under the Double Jeopardy Clause.

Keywords: criminal law, criminal procedure, evidence, double jeopardy, Armed Career Criminal Act, ACCA, Descamps v. United States

Suggested Citation

Roth, Jessica, The Divisibility of Crime (2015). 64 Duke Law Journal Online (February 2015) pp. 95-119; Cardozo Legal Studies Research Paper No. 450. Available at SSRN: https://ssrn.com/abstract=2573414

Jessica Roth (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0489 (Phone)

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