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# Categorical Nonuniformity

## Details

**Authors** Sheldon A. Evans

**Year** 2020

**Publisher** Columbia Law Review

**Kind of work** article

**Discipline** Law & Jurisprudence

**Applied** false

[Read it at the publisher](https://doi.org/10.2139/ssrn.3561022) 
10.2139/ssrn.3561022

## In authors' words

### Abstract

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.

### What they set out to do (purpose)

To examine whether the categorical approach used by federal courts to match prior state convictions to federal crime definitions actually achieves the nationwide uniformity it is meant to produce.

### Who or what was studied (sample)

Comparative analysis of state criminal statutes and federal case law applying the categorical approach in sentencing enhancement (ACCA) and immigration (INA) contexts.

### How they did it (methods)

Doctrinal legal analysis comparing how differently worded state burglary and other statutes are categorized against federal generic-offense definitions across jurisdictions.

### What they found (results)

The categorical approach produces nonuniform outcomes across states because whether a prior conviction 'categorically matches' a federal offense definition turns on how a state legislature happened to draft the statutory elements, not on the facts of the underlying conduct.

## Commentary

### In short

Whether a real-world conviction crosses a formal legal category boundary depends on the incidental wording of the statute defining it, not on the underlying conduct, so identical conduct falls on different sides of a legal distinction depending on which state prosecuted it.

**Patterns it shows** D

**Added** 2026-09-21

**How to cite this** Sheldon A. Evans (2020). Categorical Nonuniformity. Columbia Law Review.