Divisible Statutes and the Documents a Judge May Read

Criminal statutes are rarely written as single clean prohibitions. They contain lists: entering a building, structure or vehicle; possessing, distributing or manufacturing; causing injury recklessly, knowingly or intentionally. Whether those lists open the criminal file to inspection, or seal it shut, is the question that decides a large share of removal cases built on convictions.

Elements and means

A list of alternatives can do one of two things. It can create several distinct offenses, each with its own elements, in which case a jury would have to agree unanimously on which one occurred. Or it can describe different ways of committing a single offense, in which case jurors could disagree about which way it happened and still convict.

The first kind of statute is divisible. The second is indivisible, and for it the ordinary comparison applies to the statute as a whole, at the least conduct it reaches, as described in the categorical approach.

The distinction is not intuitive and it is not answered by how the statute looks. It is answered by asking what a jury would have to agree on, and the Supreme Court has set out where to find that answer: a definitive decision of the state's own courts; failing that, the statutory text, since alternatives carrying different penalties must be elements; and failing that, a limited look at the record used only to resolve the elements question.

What a divisible statute permits

Where a statute is divisible, the judge may determine which of the separate offenses the person was convicted of, and then compare that offense against the federal definition. This is the modified categorical approach, and it is a tool for identifying the offense rather than for finding facts.

That limitation is the whole point. The documents are not read to learn what the person did. They are read to learn which alternative the conviction rested on. A plea transcript that describes vivid conduct is used only to identify the subsection pleaded to, and the description itself carries no weight in the analysis.

What happens when the record is silent

Records are frequently inconclusive. A charging paper tracks the full statutory language without specifying an alternative; a plea agreement names only a statute number; a transcript is unavailable. The consequence of that silence depends entirely on who has to prove what.

Where the question is removability, the government carries the burden, and an inconclusive record means the ground is not established. Where the question is eligibility for relief, the applicant carries the burden, and the Supreme Court has held that an ambiguous record defeats the applicant. The same silence therefore produces opposite results depending on which question is being asked.

That asymmetry has a direct practical consequence. A person can defeat a charge on an inconclusive record and then lose an application for relief on the identical record, because the burden has switched sides in the meantime.

It also changes what is worth requesting. Where the fight is over removability, a thin record is an advantage and there is no reason to fill it. Where the fight is over relief, a thin record is a problem, and the effort goes into locating whatever will show that the conviction rested on an alternative outside the disqualifying category. The same case can call for both approaches at different stages.

A missing transcript is the most common form of this problem. Court reporters' notes are retained for limited periods, and a colloquy that was never transcribed may never be transcribable. Where a transcript exists but has not been prepared, ordering it costs money and time, and the decision to order it is made by asking which side the resulting silence would hurt.

Obtaining the records

Because so much turns on documents, obtaining them promptly is the first substantive step in a case built on a conviction. What is needed is a certified copy of the complaint or information, the judgment, any written plea agreement, the docket sheet, and where available a transcript of the plea hearing.

Certification matters. Official records submitted in immigration proceedings are subject to a regulation setting out how they must be attested, and an uncertified photocopy invites an objection that costs a hearing date. Transcripts are the slowest item to obtain and often the most valuable, so the request goes out first.

The order in which this work is done matters as much as the work itself, because the answer to the divisibility question decides whether a case is defended on the charge or on relief, and the pleading is taken long before the records arrive. That timing problem is why the answer given at the first hearing is planned in advance, as described in pleading to the allegations and conceding removability. Reading a state statute against its own case law to decide whether a list is elements or means is technical work, and a divisible statute analysis counsel will usually reach the answer faster than the records arrive.

Where this changes the outcome

Divisibility decides real cases. A drug statute listing controlled substances is often divisible by substance, so the record determines whether the conviction involved a federally controlled substance at all, an analysis set out in drug convictions and the one narrow exception. A theft statute divisible by the nature of the taking may or may not reach the federal category depending on which alternative was pleaded.

It also interacts with the separate question of whether a conviction exists at all in the immigration sense, which turns on a federal definition rather than on state labels and is dealt with in why a dismissed case can still be a conviction. Where the classification cannot be defeated, the remaining route is often post-conviction relief, and which vacaturs are given effect is set out in vacating a conviction for immigration purposes.