Taylor & the Surprising Success of Gun Crime Defendants at the Supreme Court
In a decision this past June, United States v. Taylor, the Supreme Court ruled that the mandatory minimum penalties in 18 U.S.C. § 924(c) could not be applied to a man convicted of an attempted federal robbery offense. The decision comes as one in a string of victories at the Supreme Court for gun-crime defendants facing steep penalties. In a number of decisions over the past several years, an otherwise very conservative Court has sided with criminal defendants facing mandatory minimum sentences for gun crimes in at least a half dozen decisions. I’ll start by describing Taylor and then explain how it fits into a broader pattern of a Court showing what I see as a recognition of the extraordinary punitiveness of the federal gun sentencing structure, a theme I’m exploring in a work in progress. (Brandon Garrett and I also recently published an article, The Trajectory of Federal Gun Crimes, which recounts some of this Court’s engagement with these firearm penalty statutes).
In Taylor, the defendant was convicted of attempted Hobbs Act robbery (basically a robbery with an interstate connection, here to drugs). Based on that conduct, he was also convicted of violating § 924(c), which provides for mandatory minimum punishment when a person uses/carries a firearm while committing a federal crime of violence. A “crime of violence” includes (among others that don’t apply here) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The central question, under current doctrine, was whether attempted Hobbs Act robbery has as an element the use, attempted use, or threatened use of force. To answer that question, the Court used what it has called a “categorical approach,” meaning that it looks to the elements of the underlying offense, not to how any particular defendant committed it in a given incident. And, using that method, the Court concluded that Taylor’s attempted robbery did not qualify because one could commit attempted Hobbs Act robbery without using, attempting to use, or threatening to use force—as, for example, if a person took substantial steps toward such a robbery, like planning a route, conspiring with others, gathering weapons and instruments to conduct the robbery, etc. without having communicated a threat to anyone by the time the attempted offense was complete.
The result is fairly straightforward under the categorical approach. The majority opinion by Justice Gorsuch garnered 6 other votes, with only Justices Thomas and Alito dissenting. (Justice Alito has dissented in almost all of the criminal defendant wins in gun crime cases over the past decade.) Justice Thomas would get rid of the categorical approach altogether and focus on the actual conduct at issue—which, in Taylor, resulted in someone being shot to death. Justice Alito read the statute differently than the majority.
Taylor is of a piece with recent Court decisions constricting the reach of some of federal law’s harshest mandatory sentences, including the Armed Career Criminal Act’s 15-year mandatory add-on for a person caught unlawfully possessing a firearm who has three prior convictions for violent felonies or serious drug crimes, and § 924(c)’s mandatory escalating penalties for carrying/using a gun in a federal crime of violence or drug tracking crime (starting at 5 years and increasing depending on whether the gun was brandished or discharged, and higher if it was a specified weapon thought to be more dangerous).
Start just seven years ago in 2015 and consider the criminal defendant wins since then. Given the composition of the Court, each was joined by at least one—and often several—conservative justices:
- 2015: Johnson v. United States (Scalia, J.), holding ACCA’s residual clause unconstitutionally vague.
- 2016: Mathis v. United States (Kagan, J.), narrowly construing what counts as a generic burglary offense for constituting an ACCA predicate.
- 2017: Dean v. United States (Roberts, J.), clarifying that, when considering the sentencing for the underlying crime, a sentencing judge could consider the steep penalties in § 924(c).
- 2019: Davis v. United States (Gorsuch, J.), holding that § 924(c)’s residual clause is unconstitutionally vague.
- 2021: Borden v. United States (Kagan, J.), holding that a criminal offense cannot qualify as an ACCA predicate violent felony if it only requires a mens rea of recklessness.
- 2022: Wooden v. United States (Kagan, J.), narrowly construing the requirement that ACCA predicate offenses must be completed on separate occasions.
To be sure, some gun crime defendants lost cases in these years, but I have to imagine that the win rate for criminal defendants facing mandatory minimum penalties for gun crimes under ACCA or § 924(c) is considerably higher than for most other criminal defendants in these years. And that doesn’t even include cases like Rehaif v. United States, where a criminal defendant not facing a mandatory minimum won a major victory—the Court declared that the government must prove that a prohibited person knew the status that made it unlawful for him to possess a firearm to sustain a conviction under 18 U.S.C. § 922(g). (Of course, other gun crime defendants not facing mandatory penalties that lost in the last decade include the several challenging bars on possession by those with certain domestic violence convictions – United States v. Castleman and Voisine v. United States.)