Divisibility Redux: 'Alternatively Phrased Statutes' and State Law in the Post- Mathis Categorical Approach

Abstract

The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court’s immigration and federal recidivist sentencing docket. While the primary questions about how to apply the approach have been resolved, many adjudicators and practitioners still find the categorical approach vexing and difficult to apply. A major source of confusion arises from the “modified categorial” approach and what the Supreme Court in Mathis v. United States has called “alternatively phrased statutes,” which use disjunctive language or list alternatives. It is often unclear whether these statutes describe different means of committing a single crime, elements of distinct offenses, or, in the case of statutes with more than two alternatives, some combination of both means and elements. This Article begins by explaining the Mathis Court’s ruling that state law is the primary source to consider in the means versus elements analysis of alternately phrased statutes in the modified categorial approach. This Article then highlights common mistakes made in the post-Mathis federal court jurisprudence when applying the means versus elements test. Each section analyzes a specific error, illustrates it in judicial opinions, and includes examples of the correct analysis. The errors analyzed include (1) relying on state law that provides no definitive answer; (2) “peeking” at the record of conviction; (3) mistaking the prosecutor’s charge of one alternative for divisibility; (4) relying on only the disjunctive wording or structure of the statute; (5) mistaking partial divisibility for complete divisibility; and (6) citing to overruled pre-Mathis-precedent. Correct application of the post-Mathis categorical approach is critical for protecting the rights of defendants and immigrants, as well as ensuring the fair adjudication of their cases.

Keywords: categorical approach, sentencing, recidivism, Mathis, Taylor, re-sentencing, immigration, criminal law

JEL Classification: K34