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Columbia Law Review

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The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, however, the categorical approach produces the opposite. By examining the categorical approach in different contexts, this Article shows that relying on state criminal elements has produced nonuniformity due to the variations of state law.

While scholars are increasingly weighing in, this Article contributes to the literature by applying different theories of uniformity that juxtapose the ideals of nationwide uniformity with the potential benefits of nonuniformity. This novel analysis supports several paths forward, dictated by policy preferences. First, if uniformity is to be prioritized, the elements-based categorical approach must be fundamentally redesigned to properly accomplish this goal. Second, uniformity can be responsibly abandoned by justifying the elements-based categorical approach under a different theoretical framework that acknowledges the benefits of state variation. Finally, other options might prove effective to tailor the categorical approach to the policy goals unique to different statutes, and the possible abolition of the categorical approach altogether.



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