The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Supreme Court

Justices Spar Over How to Interpret the Armed Career Criminal Act

In Wooden v. United States, the justices were unanimous in the judgment, but expressed disagreement over the role of statutory history and the rule of lenity.


Today the Supreme Court decided Wooden v. United States, which concerned whether multiple criminal offenses committed in succession as part of a single crime spree occurred on different "occasions" for purposes of sentence enhancements under the Armed Career Criminal Act (ACCA). The Court was unanimous in concluding that a single crime spree is a single "occasion," even if it resulted in multiple convictions, but disagreed about how to get there.

Justice Kagan wrote for the Court, joined in full by the Chief Justice and Justices Breyer, Sotomayor, and Kavanaugh. Justices Thomas, Alito, and Barrett joined all but one section of Justice Kagan's opinion (Part II-B) which concerned statutory purpose and history. Justices Kavanaugh and Sotomayor each wrote separate concurring opinions. Justice Barrett wrote an opinion concurring in part and concurring in the judgment, joined by Justice Thomas. And Justice Gorsuch filed an opinion concurring in the judgment, joined in part by Justice Sotomayor.

Justice Kagan briefly summarized the question presented to the Court, and its conclusion:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night's work, to ten counts of burglar —one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA). That statute mandates a 15 year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary "committed on occasions different from one another." 18 U. S. C. §924(e)(1). The question presented is whether Wooden's prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously. The answer is no. Convictions arising from a single criminal episode, in the way Wooden's did, can count only once under ACCA.

Justice Kagan justified this result on textual grounds, but also explained why statutory history and purpose reinforced this result. It was this latter part of the opinion that prompted disagreement from some of her colleagues.

Justice Barrett, joined by Justice Thomas, explained why she refused to join Justice Kagan's discussion of statutory purpose and history:

I join all but Part II–B of the Court's opinion. I agree with the Court's analysis of the ordinary meaning of the word "occasion" and its conclusion that Wooden's burglaries count only once under the Armed Career Criminal Act. But I do not share the Court's view that Congress ratified the Solicitor General's brief confessing error in United States v. Petty, 798 F. 2d 1157 (CA8 1986), when it amended the Act to add the occasions clause. This argument depends on two flawed inferences: first, that Congress specifically intended to reject the Eighth Circuit's initial decision in Petty, and second, that it embraced the former Solicitor General's reasoning for why that decision was wrong. The latter error, in particular, is likely to work mischief down the line.

And she concluded:

The Court glosses this statute by leaning on weak evidence of Congress' impetus for amending the statute, followed by still weaker evidence that Congress embraced the reasoning of a brief filed by the Solicitor General. I would impute to Congress only what can fairly be imputed to it: the words of the statute. Crimes within a spree like Wooden's do not count as separate ACCA predicates because of the statutory language, not because those who drafted the amendment had either Petty's case or the Solicitor General's prose in mind.

Justice Gorsuch also wrote a separate opinion (joined by Justice Sotomayor for all but one part, as also occurred last week) concurring in the judgment. According to Justice Gorsuch, the Court should have rested its conclusion on the rule of lenity.  His opinion concludes

The rule of lenity has a critical role to play in cases under the Occasions Clause. The statute contains little guidance, and reasonable doubts about its application will arise often. When they do, they should be resolved in favor of liberty. Today, the Court does not consult lenity's rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people's elected representatives and in laws clear enough to supply "fair warning . . . to the world." McBoyle, 283 U. S., at 27.

Justice Sotomayor wrote her own concurring opinion endorsing both Justice Kagan's opinion for the Court, and Justice Gorsuch's argument that applying the rule of lenity requires the same result.

Justice Kavanaugh, on the other hand, wrote a concurrence responding to Justice Gorsuch, arguing against application of the rule of lenity in cases like this. From his opinion:

In light of JUSTICE GORSUCH's thoughtful concurrence in the judgment, I write separately to briefly explain why the rule of lenity has appropriately played only a very limited role in this Court's criminal case law. And I further explain how another principle—the presumption of mens rea—can address JUSTICE GORSUCH's important concern, which I share, about fair notice in federal criminal law. . . .

. . . because a court must exhaust all the tools of statutory interpretation before resorting to the rule of lenity, and because a court that does so often determines the best reading of the statute, the rule of lenity rarely if ever comes into play. In other words, "if lenity invariably comes in 'last,' it should essentially come in never." D. Kahan, Lenity and Federal Common Law Crimes, 1994 S. Ct. Rev. 345, 386. As I see it, that explains why this Court rarely relies on the rule of lenity, at least as a decisive factor.

I would not upset our rule of lenity case law by making the ambiguity trigger any easier to satisfy. For example, I would not say that any front-end ambiguity in the statute justifies resort to the rule of lenity even before exhausting the tools of statutory interpretation. One major problem with that kind of ambiguity trigger is that ambiguity is in the eye of the beholder and cannot be readily determined on an objective basis. Applying a looser front-end ambiguity trigger would just exacerbate that problem, leading to significant inconsistency, unpredictability, and unfairness in application. See B. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2136–2139 (2016). . . .

In sum, I would not invite the inconsistency, unpredictability, and unfairness that would result from expanding the rule of lenity beyond its very limited place in the Court's case law. I would, however, continue to vigorously apply (and where appropriate, extend) mens rea requirements, which as Justice Robert Jackson remarked, are "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.". . .