In Borden v. United States, No. 19-5410 (June 10, 2021), the U.S. Supreme Court held that a criminal offense that requires only a mens rea of recklessness does not constitute a “violent felony” for purposes of an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

After Charles Borden, Jr., pleaded guilty to a felon-in-possession charge, the government argued that Borden had three prior convictions for violent felonies that increased his potential penalty from a 10-year maximum sentence to a 15-year minimum sentence under the ACCA. Borden argued that one of the convictions, which was for reckless aggravated assault in violation of a Tennessee statute, was not a “violent felony” for purposes of the ACCA, because a mental state of recklessness sufficed for conviction, and the ACCA’s definition of a violent felony as an offense involving the “use of physical force against the person of another” required purposeful or knowing conduct. The U.S. District Court for the Eastern District of Tennessee concluded that reckless offenses qualified as violent felonies under the ACCA and sentenced Borden as a career offender, and the U.S. Court of Appeals for the Sixth Circuit affirmed.

The U.S. Supreme Court reversed and remanded, holding that an offense with a mens rea of recklessness did not qualify as a violent felony under the ACCA, because it did not require the active employment of force against another person. Associate Justice Elena Kagan, writing the plurality opinion, reasoned that, under Model Penal Code § 2.02, “[a] person acts purposefully when he ‘consciously desires’ a particular result,” and a person “acts knowingly when ‘he is aware that a result is practically certain to follow from his conduct,’ whatever his affirmative desire”; in contrast, “[a] person acts recklessly . . . when he ‘consciously disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Justice Kagan explained that recklessness and negligence are less culpable mental states than purpose and knowledge, because they involve having insufficient concern with a risk of injury, rather than making “a deliberate choice with full awareness of consequent harm.”

In the dissent, Associate Justice Brett M. Kavanaugh argued in favor of affirming Borden’s conviction, reasoning that “[a]n individual who commits three reckless assaults or homicides and then unlawfully possesses firearms falls well within the class of people that ACCA encompasses.” Justice Kavanaugh explained that, according to the Model Penal Code and most States, “recklessness as to the consequences of one’s actions generally suffices for criminal liability.” He pointed out that “Model Penal Code [§ 2.02] establishes recklessness as the default minimum mens rea for criminal offenses,” and specifies that, “[i]f a more culpable mental state, such as intent or knowledge, is required for a criminal offense, ‘it is conventional to be explicit’”; tellingly, the ACCA contains no such explicit language excluding reckless offenses.

Find the full case here.


Andrea K. Wooster

The American Law Institute


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