Impressive hand-wringing about the “categorical approach” to criminal history from Third Circuit judges

A helpful colleague made sure that I saw the notable opinion authored by Judge Jordan and joined by a half-dozen of his Third Circuit compatriots in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here).  The opinion is a concurrence in denial of rehearing en banc sought by the government hoping to overturn a key Third Circuit precedent, Mayo.  Mayo ruled a Pennsylvania’s aggravated assault conviction did not qualify as “violent” to be a predicate for applying the Armed Career Criminal Act due to the “categorical approach” to criminal priors required by Supreme Court precedent. 

The full 42-page Harris opinion, which is filled with Mayo and mustard, is a must-read for anyone eager to better understand the mess that is federal law seeking to categorize state criminal priors.  I will here quote a number of paragraphs, mostly from the start and end of the opinion, though many more are worth reading: 

We recognize that our decision today declining en banc reconsideration of this matter will be a source of great frustration for the government.  Frustration is the gift that the “categorical approach” keeps on giving.  This peculiar analytical construct has forced us and other courts to reach perverse outcomes in many, many cases, this one being only the latest.  And even when the result of applying the categorical approach sometimes makes sense, time and effort is often wasted because a more obvious route to the sensible result is readily available.  Even worse is the difficulty of justifying the categorical approach and its outcomes to the citizenry we serve.  The public may not care whether anyone finds the categorical approach frustrating, but they do care about justice, and we are unable to explain how our holding in this case satisfies basic notions of right and wrong.  Despairing of that, we write to describe why the outcome here is compelled by precedent and to highlight why changes in the categorical approach are needed.

For those who may not be familiar with the categorical approach, we provide a brief overview of its origin and development, with particular focus on the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the legislation that, along with another firearms statute, 18 U.S.C. § 924(c), and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., has been the primary seedbed for this extraordinary doctrine.  We then explain how application of the categorical approach regularly generates unjust results and taxes judicial resources.  We conclude by explaining our support for a more fact-based approach that would maintain key aspects of Supreme Court precedent while allowing courts to take account of an individual’s actual conduct and, hence, provide real justice….

Time and again, federal courts have been required to hold that state law felony convictions for conduct that plainly involved the use of force — including convictions for voluntary manslaughter, aggravated assault, assault with a deadly weapon with intent to kill, attempted rape, first-degree sexual abuse, sexual abuse by forcible compulsion, taking indecent liberties with a child, maliciously damaging or destroying property by means of an explosive, first-degree robbery, second-degree robbery, first-degree burglary, and second-degree burglary — do not qualify as “violent felonies” under ACCA.  Today, we are likewise compelled to reiterate, bizarre though it sounds, that shooting at a fleeing victim is not a “violent felony,” Harris, 68 F.4th at 141, while in Mayo, we were forced to say that bashing a victim in the head with a brick was not “violent” under ACCA….

Considering the well-intentioned provenance of the categorical approach, it is ironic that it has come to be such an impediment to the sound administration of justice.  Last year, Justice Thomas chose a different metaphor than hole digging, but his point seemed much the same when he memorably observed that the “‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’” Taylor, 142 S. Ct. at 2026 (Thomas, J., dissenting) (quoting Lewis Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982)). We hope the journey, and the digging, ends soon.

In the meantime, we have no choice but to deny the government’s petition for en banc review.