Applying the presumption of mens rea to a sentencing factor: does 18 U.S.C.

AuthorKelly, Elizabeth H.
PositionSection - C - 1 - A - Iii

"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory 'But I didn't mean to,' and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution." (1)


    It is well settled that the presumption of mens rea in criminal law applies to federal criminal statutes. (2) It remains debatable, however, whether this presumption applies to sentencing provisions contained within federal criminal statutes. (3) Circuit courts have confronted this issue when deciding whether trial courts should impose the sentencing enhancement for discharging a firearm contained in 18 U.S.C. [section] 924(c)(1)(A) on a defendant who has accidentally discharged a firearm. (4)

    Passed in response to Bailey v. United States, (5) the current version of [section] 924(c) is the result of a 1998 amendment. (6) The amendment increased the scope of the statute by prohibiting possession of a firearm, whereas the prior version only prohibited the use and carrying of a firearm. (7) Congress went even further, adding additional and harsher mandatory minimum sentences for brandishing or discharging a firearm. (8) Section 924(c) imposes substantial penalties and is a powerful tool for federal prosecutors. (9) This new statutory language broadens the statute's application and has allowed federal prosecutors to seek a ten-year mandatory sentence for the unintended, accidental discharge of a firearm. (10) The application of this statute subjects criminal defendants to inconsistent prosecution and stiff consecutive sentences that are ineligible for parole. (11)

    Opponents of the legislation correctly predicted that the new mandatory minimum penalties in [section] 924(c) would have ludicrous consequences. (12) The House Committee on the Judiciary recently considered the statute's unfavorable consequences and has considered revisiting the use of mandatory minimum sentences such as [section] 924(c). (13) The harshness of this statute is demonstrated by the Supreme Court's interpretation in Harris v. United States, (14) where the Court held that the brandish and discharge provisions are sentencing factors rather than elements of the crime. (15) As a result, prosecutors do not have to formally charge defendants with discharging a firearm, and a judge, rather than a jury, decides whether a defendant has violated the statutory provision by a preponderance of the evidence. (16)

    Federal courts differ in their interpretations of the provisions contained in [section] 924(c)(1)(A). (17) Specifically, courts disagree about whether a defendant is culpable under the statute for the unintended discharge of a firearm or, stated differently, whether there is a mens rea requirement implicit in the discharge provision of [section] 924(c)(1)(A)(iii). (18) To examine this issue, this Note will review four circuit court cases demonstrating two conflicting approaches to deciding whether the ten-year sentence applies to the accidental discharge of a firearm. (19) The courts have focused on the language of the statute and the provision's status as a sentencing factor without examining legislative history. (20) As the answer turns on congressional intent, this Note will provide a detailed examination of the statute's legislative history and the 1998 amendment adding the discharge provision. (21) It will then discuss how the Supreme Court has interpreted the discharge provision and used rules of statutory construction and the rule of lenity in relation to issues of mens rea. (22) This Note will then analyze the conflicting interpretations of [section] 924(c)(1)(A)(iii) and suggest which approach is most appropriate in light of the legislative history and rules of construction. (23) Lastly, this Note will conclude that imposing a mens rea requirement in sentencing factors such as [section] 924(c)(1)(A)(iii) is consistent with congressional intent and traditional notions of criminal law and, together with the rule of lenity, may be a way to combat the harsh effects of mandatory minimum sentencing provisions. (24)


    1. Legislative History of the Statute

      1. Enactment and Initial Amendments

        Congress originally enacted the statute that is now [section] 924(c) as part of the Gun Control Act of 1968. (25) The Act provided for a mandatory sentence of one to ten years for carrying a firearm "unlawfully during the commission of any federal felony." (26) Since its inception, however, Congress has amended the statute many times. (27)

        Congress significantly amended the statute in passing the Comprehensive Crime Control Act of 1984. (28) The 1984 Act created a mandatory five-year sentence "for use of a firearm during a federal crime of violence." (29) Congress removed the term "unlawfully" in order to impose culpability even if the offender carried a registered gun. (30) In response to concerns that removing "unlawfully" would apply the statute to lawful firearm possession unrelated to the crime committed, however, Congress added the phrase "during and in relation to." (31)

        In 1986, Congress passed the Firearms Owners' Protection Act, which contained amendments to [section] 924(c). (32) Here, Congress's purpose was to clarify that in passing the Gun Control Act of 1968, it did not intend to place undue restrictions on the lawful possession and use of firearms. (33) With this goal in mind, Congress added a mens rea element to [section] 924(a), requiring that the offender act either knowingly or willfully, depending on the violation. (34) Prior to the 1998 amendment, however, the courts interpreted [section] 924(c) as containing a separate mens rea requirement apart from [section] 924(a). (35) Specifically, courts inferred that knowledge of the facts constituting the offense--carrying or using a firearm during and in relation to a violent crime or drug trafficking crime--established the required level of culpability. (36)

      2. 1998 Amendment and Current Statutory Language

        Congress enacted the current version of [section] 924(c) through an amendment passed in 1998. (37) Congress was responding to the Supreme Court's decision in Bailey, which narrowly construed the meaning of "use." (38) In Bailey, the Court held that a defendant could only be convicted under [section] 924(c) if the defendant actively used a firearm, rather than having merely possessed one. (39) In response, Congress added "possession in furtherance of" a crime as an alternative to the "uses or carries" language. (40) The proponents of the amendment recognized the need for stronger penalties to deter drug traffickers from arming themselves. (41)

        The amendment created new penalties: a seven-year minimum sentence if the gun is brandished and a ten-year minimum sentence if the gun is discharged. (42) The current language of the statute resulted from a compromise between the House and Senate. (43) As introduced in the House, the bill amended the statute to apply, "if the firearm is discharged during and in relation to the crime." (44) Specifically, the House Bill sought to impose increased mandatory minimum sentences, and proposed replacing the "uses or carries" test with "increased penalties for escalating egregious conduct." (45) The proponents specified that in the case of a conviction for brandishing or discharging, the government must show that "the firearm was used 'during and in relation to' the commission of the federal crime of violence or drug trafficking crime," and not as the result of a mere accident. (46) The opponents expressed concern that the increases in penalties for brandishing and discharging were disproportionately severe in relation to more violent crimes. (47)

        Congress did not define the term "discharge" in the 1998 amendment. (48) Congress did, however, define the term "brandish," in part, as "to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person." (49) During testimony before the Senate Committee on the Judiciary, Thomas G. Hungar commended the additional penalties "when the defendant actually fires the weapon in committing the underlying crime." (50) Senator Jesse Helms's testimony explained that the purpose behind the amendment was to send "a clear message to criminals: If you possess a gun in any way to further your violent criminal behavior, you get a minimum of five years in the slammer; and if you fire the weapon, it's 10 years--minimum." (51)

        Most importantly, the 1998 amendment increased the sentence terms by including the language "term of imprisonment of not less than." (52) This changed the sentences from a fixed five-year term to a minimum five-year term with a maximum life term. (53) Likewise, brandishing and discharging a firearm carry maximum sentences of life in prison. (54) Congress, in effect, created new mandatory minimum sentences with maximum terms of life in prison. (55)

    2. The Supreme Court's Interpretation of [section] 924(c)(1)(A)(iii)

      Although "brandish" and "discharge" are aggravating factors contained in the statute, the Supreme Court held in Harris that they are sentencing factors, not elements of the crime. (56) In deciding that [section][section] 924(c)(1)(A)(ii) and (iii) are sentencing factors, the Court considered Congress's intent by looking at the statute's language. (57) While the statute does not explicitly label the subsections as sentencing factors, by setting out separate subsections for the penalty terms, the inference is that Congress intended the...

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