Criminal Certification: Restoring Comity in the Categorical Approach

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve the uncertainties which exist at the edges of their criminal code. When a federal sentence turns upon a state crime, these uncertainties must be resolved by federal judges, leaving federal courts in the position of attempting to prophesize state law. As a result, two problems arise: a federal court may get a particular case wrong, sentencing a defendant to a sentence not properly applicable, and federal courts may split on the meaning of a state law, with no opportunity to get an authoritative ruling unless the precise issue arises in a new state case. There is a better way.

This problem was faced once before, in the civil context. An elegant solution was found: certification. The already constructed certification framework can and should be utilized by federal courts facing unclear, unsettled, or unencountered questions of substantive state criminal law. This would solve the federalism and accuracy problems currently inherent in federal sentencing based upon prior state conviction.