Sunday, May 03, 2009


Firing a gun during the commission of a crime can increase the minimum sentence. What if the firing was accidental – does the minimum apply?

In Dean v United States [2009] USSC No 08-5274, 29 April 2009 this question divided the United States Supreme Court in its interpretation of 18 U. S. C. §924(c)(1)(A), which, as summarised by Roberts CJ (joined by Scalia, Kennedy, Souter, Thomas, Ginsburg and Alito JJ):

"... criminalizes using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that offense receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years "if the firearm is brandished" and to 10 years "if the firearm is discharged."

Plainly, a question of statutory interpretation. Should the common law presumption of mens rea (Morissette, 342 U. S., at 251–254, Staples, 511 U. S., at 606–607) apply to the sentencing regime? Stevens J, dissenting, thought so, and Breyer J, also dissenting, agreed. For Breyer J it was particularly important that excluding the offender from the minimum sentence would not prevent the judge from imposing a sentence close to that if the circumstances warranted. But to include the accidental shooter in the minimum regime prevents judges from making appropriate allowances. This, said Breyer J, made the rule of lenity decisive: if the legislature wanted to include accidental firing in the minimum sentence category it should have so specified.

Stevens J said that the history of the legislation indicated that intent was required, and that the majority, in arguing that there are examples of accident being inculpatory, such as the felony-murder rule, neglects to notice that in those examples harm is actually caused, whereas here it wasn't.

Roberts CJ for the majority noted that the legislation did not limit itself to intentional discharges, that it used the passive voice, which supported an inference of absence of intent, that other parts of the statute referred to intent, so its omission here was significant, that it is not unusual for the law to impose liability for the unintended consequences of unlawful acts, that the sentence enhancement regime reflects the risk of harm, and that the rule of lenity was excluded by the statutory text and structure.

The case illustrates the choices between techniques of statutory interpretation and common law presumptions. The choice between these must be based on policy, yet when the Court gives voice to a policy argument (the sentencing enhancement reflects the increased risk of harm) that is unconvincing because the same risk applied lower down the regime, at the 7 year level.

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