The categorical approach is a method of ‘categorizing’ which state criminal convictions can trigger federal sanctions.
But lurking under-neath this simple encapsulation of the categorical approach lies a complex, muddled, and perplexing jurisprudence
that has broad impacts in the disparate imposition of federal criminal sentencing enhancements and immigration deportations.
When Congress wrote a number of federal statutes governing the imposition of such harsh sanctions
—such as criminal sentencing enhancements under the Armed Career Criminal Act (ACCA)
or deportation under the Immigration and Nationality Act (INA)
—it expressly allowed for state criminal convictions of certain crimes it enumerated in the statutes (such as murder, rape, and burglary) to serve as predicates to trigger these federal sanctions at a later time.
The categorical approach purports to do this through an elements-based test; it compares the state criminal elements from an offender’s prior state criminal conviction to the federal elements of the crime enumerated in the statute.
By way of example, courts utilize the categorical approach to determine if a state law’s version of murder, rape, or burglary—as defined by that state’s criminal elements—qualify under what Congress intended when it enumerated murder, rape, and burglary in the respective federal statute.
If the state criminal elements match or criminalize narrower conduct than the federal elements, then the state criminal conviction can serve as a predicate to impose the federal sanction.
For over a century,
courts have used the categorical approach to impact thousands of people every year,
justifying the elements-based approach as one that would promote nationwide uniformity across all jurisdictions,
without relying on the different “technical definitions and labels” or the “vagaries of state law.”
But the categorical approach’s reliance on state criminal elements has proven instead to be “an impediment to uniformity.”
Therefore, because the categorical approach consistently results in disparities that are triggered by the very technicalities and differences in state law it promised to ignore, it has come time for its reconsideration.
The nonuniformity of the categorical approach can be told as a tale of two jurisdictions. Compare the case of Arthur Taylor to that of Richard Mathis; both offenders were convicted of second-degree burglary, but Taylor was convicted under Missouri law and Mathis was convicted under Iowa law.
The factual evidence preserved in each offender’s state court proceeding showed that both men admitted to similar conduct of having burgled buildings.
Some years later, both Taylor and Mathis emerged on the radar of federal law enforcement because they both, as persons convicted of felonies, illegally possessed a firearm in violation of federal law.
In these later federal court proceedings, federal prosecutors pursued sentencing enhancements under the ACCA based on the previous state burglary convictions.
But even dealing with such similar criminal conduct, the Supreme Court came to different conclusions under the categorical approach. Whereas the Court held that Missouri’s burglary statute can trigger the federal sanction, it separately held that Iowa’s burglary statute cannot.
Because of the minor differences in how these two sister states drafted their respective burglary statutes, the Court applied the categorical approach differently to accommodate these differences in state law. This explains how Mathis, who had the “luck”
of committing criminal conduct in Iowa, could enjoy a sentencing windfall
whereas Taylor, committing similar criminal conduct across a northern border in Missouri, was not so lucky.
Two offenders who admitted to committing similar criminal conduct of burgling different buildings at the state-proceeding stage were treated differently by federal courts imposing sanctions at the federal-proceeding phase because of the differences in state law. And the disparate impact was monumental. The nonuniformity of the categorical approach can mean the difference between adding several years behind bars or receiving a lesser sentence, or even the difference between staying in the country or being deported.
This illustrates the incompatibility between an elements-based categorical approach and nationwide uniformity. Any state-to-federal sanctioning regime that relies so heavily on state criminal elements will struggle to achieve nationwide uniformity. The federal sanctions applied at a later date will always be wholly dependent on the differences between various state laws. Any promise or commitment that the courts have made to establish nationwide uniformity has proven to be illusory in practice.
As a result, courts have fallen into the very trap they sought to avoid: The different technicalities and vagaries of state law govern the imposition of federal sanctions.
This problem arises, in part, because the courts’ broken promises are premised on the semantic imprecision of the ambiguous ideal of “uniformity.” The irony of the term “uniformity” is that it is not uniform. It enjoys a diversity of meanings, some of which can lead down different policy paths. This Article focuses on two such meanings most commonly used by the courts to justify the categorical approach. First is uniformity in terms of application. This type of uniformity ensures that the same rule, or set of rules, is applied the same way to all cases within applicable boundaries.
Second is uniformity in terms of outcomes. This uniformity ensures that similar sanctions are meted out for similar cases.
So whereas uniformity of application is more concerned with similar means, uniformity of outcomes is more concerned with similar ends. While these uniformities are distinct in theory, they often share overlapping principles and goals in practice when utilized to build legitimacy in legal regimes.
By recognizing these distinct uniformities, this Article argues that the elements-based categorical approach fails both standards because of its dependence on state law. Not only do differences in state criminal elements trigger different applications of the categorical approach,
but they also trigger different outcomes among otherwise similar offenses.
The categorical approach has failed to meet the very metric that courts developed it to achieve.
The complexities of navigating the nonuniformity of the categorical approach have demanded more of the Supreme Court’s docket in recent years in its attempt to clarify these complications; the Court has decided over twenty such cases in the past thirteen years,
with two more cases pending during this 2020–2021 Term alone.
Increasingly, lower court judges have voiced complaints that the categorical approach has become one of the most judicially taxing issues burdening the federal bench.
It comes as no surprise, then, that there has also been a sharp increase in scholarly interest both praising the merits of the categorical approach
and/or proposing solutions to fix what has become nearly unworkable.
This Article contributes a novel analysis to the literature on the categorical approach by juxtaposing the theoretical framework of nationwide uniformity with the political ideals of a federalist system of government. Building from the costs and benefits of each, the Article argues that there are unique paths forward that would restructure the categorical approach to solve its problem of nonuniformity. The first path prioritizes nationwide uniformity as a worthwhile and achievable pursuit. If either uniformity of application or outcomes is to be salvaged, the categorical approach must be redesigned to properly accommodate these uniformities. The most viable option to maximize both uniformities would be a conduct-based categorical approach. Such an approach would rely on the underlying criminal conduct of the offender’s state court conviction, and then determine if such conduct—regardless of whether it was committed in Missouri or Iowa—would fit within the federal elements of the enumerated crime.
By excising reliance on state law criminal elements, a conduct-based categorical approach will impose sanctions according to criminal conduct, which would mitigate nonuniformity that comes with state law variety.
But there is another path forward, one that recognizes that while a conduct-based categorical approach holds a greater likelihood of coming closer to uniformity than the current elements-based approach, it will not eliminate all disparity. And if perfect uniformity cannot be achieved,
the current elements-based categorical approach can be retained, albeit under a different justification. This Article argues that the practical and theoretical benefits of federalism can serve to justify the disparate application and outcomes of the elements-based categorical approach. Embracing the natural differences that arise within a federal system that accounts for and encourages differences in state law according to the preferences of that polity would justify the disparate treatment of criminal offenders who choose to violate the laws of that state, and must then accept the different costs that come with such state citizenship.
This Article proceeds in Part I by focusing on the ACCA and the INA, two key areas in which applying the categorical approach has the greatest effect on defendants and the doctrine’s development. The examples illustrate how the differences in states’ criminal statutes trigger different applications of the categorical approach and, in turn, trigger different outcomes for similar criminal conduct. Part II serves as the primary contribution of the Article by examining how the categorical approach fails to uphold courts’ promises of uniformity. By comparing courts’ logic with that of the different underpinnings of uniformity in application and uniformity in outcomes, it becomes nearly impossible to achieve either uniformity under the current elements-based categorical approach. Part III presents potential remedies to the categorical approach by exploring several paths with different views on uniformity. First, if nationwide uniformity is an achievable goal, this Article argues that the best option is to transition to a conduct-based categorical approach that removes the disparities created by differences in state law. Uniformity might also be achieved with a separate-sovereign system, allowing federal sanctions to be imposed for only previous federal—not state—convictions. Second, if nationwide uniformity is to be abandoned, the elements-based categorical approach can be salvaged, but under the different theoretical and practical justifications that may come by embracing the benefits of having variety in state law under a federal system of government. Embracing nonuniformity also allows a novel analysis of tailoring the categorical approach, pursuing different approaches for different statutes to serve the unique policy goals of each. And finally, the challenges of salvaging uniformity, and possibly redesigning the categorical approach, require consideration of complete abolition of the doctrine altogether.