More on Descamps

September 10, 2013
By Hanging Out with Carl Gunn



  • Lists of ways of committing an offense in a statute may be lists of either alternative elements, which a jury has to unanimously agree on, or lists of alternative means, which a jury doesn’t have to unanimously agree on.
  • The divisible statutes to which Descamps limits the modified categorical approach are those which list alternative elements, not those which list alternative means.
  • So research not just what the different terms in a statutory list mean but also whether they’re alternative elements that a jury has to unanimously agree on or just alternative means which the jury doesn’t have to unanimously agree on.



Forgive my obsession, but Descamps v. United States, 133 S. Ct. 2276 (2013) is such a wonderful decision – and has such great potential – that I just keep wanting to come back to it. (For prior posts on it, see “The Rest of My Own Little Supreme Court Update,” posted July 9, and “What Fury Hath DescampsWrought?,” posted August 21, through the links at the right.) The focus in today’s post is on the question of what the divisible statute required by Descamps has to be divided into.

In particular, does Descamps apply only to statutes which list alternative “elements” and not statutes that list alternative “means”? The distinction, which is highlighted in Justice Alito’s dissent, arises out of prior decisions such as Schad v. Arizona, 501 U.S. 624 (1991) and Richardson v. United States, 526 U.S. 813 (1999). As explained in Schad, “legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements of separate crimes,” id. at 636 (plurality opinion), quoted in Descamps, 133 S. Ct. at 2298 (Alito, J., dissenting), though this is subject to some rather broad constitutional limits, see Richardson, 526 U.S. at 820 (citing Schad, 501 U.S. at 632-33). The difference is important, because jurors need unanimously agree only on elements, not means. Descamps, 133 S. Ct. at 2298 (Alito, J., dissenting) (citing Richardson, 526 U.S. at 817); see also Schad, 501 U.S. at 631-32.

And there’s a really strong argument that the list in a statute has to be of alternative elements rather than of alternative means for it to qualify as a divisible statute under Descamps. Initially, the majority opinion in Descamps consistently refers to “elements” and “the crime of conviction.” It begins by defining a divisible statute as a statute “that sets out one or more of theelements of the offense in the alternative” and speaks of “compar[ing] the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id. at 2281 (emphasis added). Then, later it explains:

[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on theelements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing thoseelements with the generic offense’s. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates “several different . . . crimes.”Nijhawan[ v. Holder], 557 U.S. [29], 41, 129 S. Ct. 2294 [(2009)]. If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.

Id. at 2285 (emphasis added). The majority then again refers to elements in addressing Justice Alito’s concern about lists that are lists of just alternative means:

[I]f, as the dissent claims, the state laws at issue in [Taylor v. United States, 495 U.S. 575 (1990), Shepard v. United States, 544 U.S. 13 (2005), and Johnson v. United States, 559 U.S. 133 (2010)] set out “merely alternative means, not alternative elements” of an offense, post, at 2298, that is news to us. And more important, it would have been news to the Taylor, Shepard, and Johnson Courts: All those decisions rested on the explicit premise that the laws “contain[ed] statutory phrases that cover several different . . . crimes,” not several different methods of committing one offense. (Citations omitted.) And if the dissent’s real point is that distinguishing between “alternative elements” and “alternative means” is difficult, we can see no real-world reason to worry. Whatever a statute lists (whether elements or means), the documents we approved in Taylorand Shepardi.e., indictment, jury instructions, plea colloquy, and plea agreement – would reflect the crime’selements.

Id. at 2285 n.2 (emphasis added).

Justice Alito in his dissent reads all of this exactly as I suggest; indeed, it is one of the bases for his dissent.

My understanding is that a statute is divisible, in the sense used by the Court, only if the offense in question includes as separate elements all of the elements of the generic offense. By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction. See ante, at 2288 (citing Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999)).

There is more than just the language of the majority opinion, moreover. Requiring that the list in the divisible statute be of actual elements, not mere alternative means, is also more consistent with the rationale of the categorical approach. Part of that rationale, at least post-Apprendi, is that the categorical approach avoids Sixth Amendment problems. As the Court explained in Descamps:

[C]onsider . . . the categorical approach’s Sixth Amendment underpinnings. We have held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Under [the Armed Career Criminal Act], the court’s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying the prior conviction. Those concerns, we recognized in Shepard, counsel against allowing a sentencing court to “make a disputed” determination “about what the defendant and state judge must have understood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime. 544 U.S., at 25, 125 S. Ct. 1254 (plurality opinion); see id. at 28, 125 S. Ct. 1254 (Thomas, J., concurring in part and concurring in judgment) (stating that such a finding would “giv[e] rise to constitutional error, not doubt). Hence our insistence on the categorical approach.

Descamps, 133 S. Ct. at 2288.

Allowing the categorical approach to be applied to alternative means on which a jury need not be unanimous would leave the Sixth Amendment problems that the categorical approach seeks to avoid. As the Court explained in the next paragraph of its opinion rejecting “the Ninth Circuit’s reworking” of the modified categorical approach:

And there’s the constitutional rub. The Sixth Amendment contemplates that a jury – not a sentencing court – will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense – as distinct from amplifying but legally extraneous circumstances. See, e.g., Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only the offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.

Descamps, 133 S. Ct. at 2288 (emphasis added). The citation ofRichardson is significant, as Justice Alito recognizes in the portion of his dissent which is quoted above, because Richardsonapplied the important Sixth Amendment element requirement of unanimity. See id., 526 U.S. at 817 (noting that “[c]alling a particular kind of fact an ‘element’ carries certain legal consequences,” including that jury must find the fact unanimously).

Treating a listing of only alternative means as divisibility would also create random inequities. Since findings and/or admissions of mere means are not required the way that findings and/or admissions of elements are required, it will be mere happenstance that a judge happens to ask about and a defendant happens to admit – and/or a jury is instructed on and happens to find – a particular means. To make treatment of a prior conviction turn on such happenstance creates a potential for random inequity that is highly undesirable. It is also far more likely that there will be questioning about and admission of means in guilty plea cases than that there will be a unanimous finding of means in jury trial cases, which will create the additional inequity of treating guilty plea defendants more harshly than trial defendants.

To sum up, it’s not just the existence of a list of things that makes a statute divisible under Descamps. It’s a list of things a jury has to unanimously find, i.e., a list of things that are alternative elements of the offense as opposed to mere alternative means of committing it. So you should research not just the different ways in which an offense can be committed when you think about categorical approach arguments; you should research the elements/means question as well.