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Abstract

Should the location of a crime be the most important factor in determining the sentence of a convicted criminal? Should second-degree murder be categorically excluded from being a crime of violence simply because of the words a state legislature used to define it? Instinctively, much of society would answer “No”—finding that kind of arbitrariness and illogicality distasteful. Yet that is what has resulted from the Supreme Court’s categorical approach to statutory interpretation.

The Supreme Court began the federal judiciary’s journey of applying the categorical approach by using it to interpret the sentencing enhancement in 18 U.S.C. § 924(e). However, since then, the approach has been used to interpret other subsections of § 924 and sentencing enhancements in other statutes. When a court is determining whether a sentencing enhancement is applicable, the categorical approach requires courts to refrain from looking at the defendant’s conduct and instead look only to the statutory elements of the offense. Practically speaking, this means that someone who commits a burglary in one state could be subject to the sentencing enhancement associated with a violent felony. However, if he commits the same burglary in a different state that has adopted a slightly different definition of burglary, his sentence could be decades lighter. In that state, his crime could be categorically excluded from the enhancement, and he would receive a lower sentence. This illogical result is just one illustration of the consequences of applying the categorical approach.

The Court’s most recent decision on this issue—United States v. Taylor—extended the scope of the categorical approach, illustrating its illogical results in the context of § 924(c). Applying the approach to the statute’s elements clause, the Court determined that even a crime where a man is shot and left to die alone in an alley may not constitute a crime of violence. Justice Clarence Thomas, a consistent opponent of the categorical approach, authored a strong dissent to the decision. In it, he identified many problems with the approach and urged the Court to recognize that it is not too late to turn around and retrace its steps. He particularly urged it to reconsider its decision to apply the categorical approach to § 924(c), a decision that resulted in the nullification of the statute’s residual clause.

Building upon the problems with the categorical approach articulated by Justice Thomas, this Comment identifies three reasons why the Court must reconsider the categorical approach—beginning with its application to § 924(c). First, the categorical approach is inapplicable to § 924(c), even if it may be applicable in other circumstances, because § 924(c) contains a substantive crime and involves current, not past, conduct. Second, it is inconsistent with a retributivist view of justice and the idea that a person should receive their “just deserts” because, by its nature, the categorical approach does not consider an individual’s actual conduct. Finally, applying the categorical approach has led the Court to overstep the bounds of its judicial power by making a prudential judgment about the value of the residual clause. All these factors indicate that the Court should retrace its steps as quickly as possible to lessen the future consequences of stubborn adherence to the categorical approach.

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