February 27th, 2021


Justices help keep the family together

Noah Feldman

By Noah Feldman Bloomberg View

Published June 27, 2016

Justices help keep the family together

On the day of Britain's vote to leave the European Union, it was perhaps appropriate for a divided Supreme Court to decide a case about the complex, coordinated relationship between federal and state law.

Among many other things, some Britons were worried about maintaining the sovereignty of their legal system against the increasing encroachment of the European Union. In that context, it's worth noticing that well over two centuries since the U.S. Constitution made the American union "more perfect," plenty of kinks remain.

The particular kink in question involved the Armed Career Criminals Act, a federal law that criminalizes possession of a firearm if you've got three prior convictions for "violent felony," defined somewhat idiosyncratically to include "burglary, arson, or extortion."

The three prior convictions can be either state or federal -- which is what causes the coordination confusion. Different states have different definitions of classic common-law crimes such as burglary -- some of them extremely broad. The federal government has its own definitions, as well. So how to determine whether a given state-law conviction counts as a violent felony for purposes of the federal felon-in-possession law?

Traditionally, the court has adopted what it calls a "categorical" answer. It looks at the elements of the criminal offense as defined under state law. If those elements match the elements of the federal definition of the same crime, then convictions from that state will count as violent felonies for purposes of the federal gun law. If the elements don't match, the state convictions won't count.

This sounds straightforward enough -- but in fact it can lead to some perverse results. Witness the case of Richard Mathis, an Iowa man with a lengthy rap sheet listing five separate Iowa burglary convictions. When he was caught with a gun, the federal government put him on trial as a felon in possession.

But Mathis had a get out-of-jail-free card, and he played it. He argued that the Iowa burglary statute defines the crime more broadly than does federal law. The classic common law defines burglary as illegal entrance into a dwelling with the intent to steal property. Federal law expands burglary to cover illegal entrance into a "building or other structure."

But Iowa law goes further. It defines burglary to include not only entrance into a structure but also into a car, boat, or plane.

To be sure, there's nothing illegal or unconstitutional about Iowa's definition of burglary. It's free to define the crime however it wants. If the citizens of Iowa think that it's just as serious a crime to break into someone's car as into someone's home, that's their business and their sovereign right.

Mathis maintained only that his Iowa burglary convictions couldn't count for the federal gun law, because the elements of the crime of burglary in Iowa are broader than those in federal law.

The federal district court that tried Mathis disagreed. It used what courts call a "modified categorical approach." That is, having looked at the Iowa law, the court then looked at Mathis's specific prior convictions.

It was basing itself on Supreme Court precedent. When a state statute defines a crime as having multiple possible configurations, precedent directs lower courts to use the modified categorical approach and look at the indictment, jury instructions, a plea agreement, or an in-court plea colloquy to determine what crime the defendant actually committed.

Thus, for example, if Iowa law had, hypothetically, created two different kinds of burglary, first-degree burglary for unlawfully entering a building to steal, and second-degree burglary for lawfully entering, the federal district court would have had to look at the specifics of the conviction to determine if the crime was the first-degree variety.

As it turned out, Mathis wasn't a car thief or a boat thief -- he was a good old-fashioned burglar. The records of his prior convictions revealed that he had burgled structures. The court thought that this was an ordinary instance of the modified categorical approach, and concluded Mathis could be convicted as a felon in possession under federal law. The U.S. Court of Appeals for the Eighth Circuit agreed.

Thursday, the Supreme Court reversed, in a formalist opinion written by Justice Elena Kagan and joined by an exceedingly unusual, non-ideological coalition consisting of Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor.

Kagan wrote that there was a difference between the hypothetical Iowa law creating two different kinds of burglary, and the actual Iowa burglary law, which, as she put it, "enumerates various factual means of committing a single element." That is, the existing law listed different ways to commit unlawful entrance into a place, insofar as structures are factually different from cars, boats, and planes.

Because the Constitution as interpreted by the Supreme Court requires that a jury find all facts that enhance a sentence, Kagan argued that Mathis's conviction must be overturned. The jury didn't have to make a specific finding about whether he entered a building or a car, because the state law covered for any of these means of committing the crime.

In dissent, Justice Stephen Breyer, who served on the U.S. Sentencing Commission and is widely considered an expert on sentencing law, said that all this was simply hairsplitting, and would "unnecessarily complicate" federal sentencing law.

It's hard to disagree with either part of Breyer's observation. Yet the case nevertheless demonstrates something important about how the Supreme Court manages federal-state coordination. Breyer is the most European-friendly judge on the court, and his pragmatism has something in common with EU-style efforts to harmonize the law of member states with the law of Europe as enacted by the European Commission.

But the majority of the court, in its exaggerated formalism, was taking care to maintain the distinction between state and federal criminal laws. Bending over backwards to insist on their differences, even when tiny, is a form of symbolic communication. It tells Americans that the states retain sovereignty and distinctiveness.

That's an important part of the story of the success of the U.S. Constitution in coordinating different states with the center over more than two centuries. "We live by symbols," according to Justice Oliver Wendell Holmes, as quoted frequently by Justice Felix Frankfurter. Britain may be leaving Europe partly for symbolic reasons. Decisions like the Mathis case help keep the U.S. together, if only incrementally.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."