Jain & Warren on The Categorical Approach

Amit Jain and Phillip Warren (Independent and Columbia Law Review) have posted An Ode to the Categorical Approach (UCLA Law Review Discourse, Forthcoming 2019) on SSRN. Here is the abstract:

 

In United States v. Davis, a narrow majority of the U.S. Supreme Court adhered to the so-called “categorical approach” for determining which criminal convictions trigger additional federal penalties. But this approach, which requires courts to consider an individual’s crimes as defined by law instead of the facts of the person’s conduct, has increasingly come under fire. An ever-louder chorus of jurists argues that the approach is unworkable and allows individuals with criminal records to escape harsh consequences that can include decades of added incarceration, registration as a “sex offender,” or mandatory deportation.

These complaints are overstated. The categorical approach — a time-weathered component of American jurisprudence for over a century — is far from the nonsensical nightmare its naysayers portray it to be. Although the aforementioned federal penalties compromise the states’ historic role in defining and prosecuting crimes, in a world where such penalties exist, the categorical approach respects statutory text, avoids administrative challenges, protects Sixth Amendment rights, advances fair notice, and promotes uniformity. In addition, the approach offers an under-recognized federalist counterweight to the undue expansion of federal and state criminal law. In particular, it gives state leaders a unique, subtle incentive to ensure that the most serious crimes focus on the most serious conduct, lest these crimes cease to qualify as predicates for federal penalties.

Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy. Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.