Archive for the ‘Statutory Interpretation’ Category

Crime Elements and Mental States: A New Theory

Monday, March 25th, 2013

When legislatures create new crimes, they sometimes fail to specify what mental state must be proven with respect to each element.  These gaps in substantive criminal law give real significance to deafult rules or presumptions that certain levels of mens rea are required in certain circumstances.  The Model Penal Code, for instance, specifies that some form of mens rea (purpose, knowledge, recklessness, or negligence) must be proven as “each material element of the offense.”

The Supreme Court has also recognized a mens rea presumption, although in a somewhat more limited form than the MPC.  This was made clear, for instance, in Dean v. United States, 556 U.S. 568 (2009), in which the Court held that a ten-year mandatory minimum sentence could be triggered by the entirely accidental discharge of a firearm during a bank robbery.  The relevant statute did not specify any mental state, and Dean argued that the government should be required to prove that the discharge was knowing or intentional.  However, the Court indicated that its mens rea presumption only applied to elements that made a defendant’s conduct criminal, not to aggravating factors (like the discharge of a weapon) that merely made the defendant’s illegal conduct even worse.

Now, in an interesting new article, Eric Johnson seeks to defend and elaborate on Justice Stevens’ dissent in Dean.  (more…)

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Dorsey v. United States: So Long, Saving Statute?

Monday, July 30th, 2012

Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010.  The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986.  There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime.  However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it.  Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty.  However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication.  Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent.  By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.   (more…)

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Mandatory Minimums and the Supreme Court

Monday, September 12th, 2011

I posted a few months ago on Erik Luna and Paul Cassell’s insightful article on mandatory minimums in the Cardozo Law Review.  Cardozo’s on-line journal, de novo, has just published my more extended response to Luna and Cassell: “Mandatory Minimums: Don’t Give Up on the Court,” 2011 Cardozo L. Rev. de novo 67.  Here is a taste from the introduction:

Erik Luna and Paul Cassell have given us an extraordinarily thorough and persuasive treatment of an important topic. I have little doubt that the world would be a better place if Congress heeded their advice and adopted the reforms they propose for federal mandatory minimum sentencing laws.2 Will Congress actually do so? Drawing on an eclectic mix of insights from behavioral science, political science, and legal theory, Luna and Cassell present a case for guarded optimism. On the other hand, in his insightful response to Luna and Cassell, Ronald Wright identifies various institutional features of congressional decisionmaking that seem likely to blunt the gathering momentum for mandatory minimum reform. Whether or not Wright is ultimately too pessimistic regarding Congress, his argument should cause us to consider whether other branches of government might realistically be expected to fill the void created by legislative inertia and timidity.

For instance, what about the Supreme Court—might the Court play a meaningful role in paring back the penal excesses of our federal mandatory minimums? Luna and Cassell dismiss the possibility. They write, “[T]he Supreme Court’s jurisprudence in this area, described by some as an abandonment of the field, makes clear that judicial review will not provide much of a check on excessive punishment. . . . [S]ignificant reform will come, if at all, by Congress.”

They may reach this conclusion too quickly. Their analysis is based entirely on the Supreme Court’s Eighth Amendment jurisprudence. However, they disregard an emerging body of statutory interpretation jurisprudence in which the Court has acted with surprising boldness in narrowing the scope of the Armed Career Criminal Act, one of the most draconian of the federal mandatory minimum statutes. The ACCA cases suggest that the Court may be more willing to regulate mandatory minimums through statutory than through constitutional interpretation. More speculatively, another very recent decision, United States v. O’Brien, may point the way to more robust procedural regulation of mandatory minimums, including a right to have a jury find the facts that trigger a mandatory minimum beyond a reasonable doubt.

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Competing Approaches to Interpreting Criminal Statutes

Tuesday, June 21st, 2011

I’ve just read an insightful paper by Eric Johnson on the interpretation of criminal statutes: Does Criminal Law Matter? Thoughts on Dean v. United States and Flores-Figueroa v. United States, 8 Ohio St. J. Crim. L. 123 (2010).  Johnson describes what he calls the “doctrine-centered” approach this way:

The doctrine-centered approach to criminal statutory interpretation has two defining characteristics. The first is the courts’ readiness, under this approach, to conclude that the statute itself leaves important questions unanswered. The second is the courts’ assumption that these unanswered questions are best resolved by the systematic application of criminal law doctrine—rather than by, say, an ad hoc, statute-specific analysis of the policies at stake. (128)

The competing “statutue-specific” approach has two contrasting characteristics:

The first is a readiness to find clear answers to interpretive questions in the statute‘s text. The second is a preference for resolving unanswered questions without the help of criminal law doctrine.  (138)

According to Johnson, the Dean and Flores-Figueroa decisions from 2009 reflect the Supreme Court’s current preference for the statute-specific approach.  (more…)

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SCOTUS Rules That “Cocaine Base” Is Not Limited to Crack

Friday, June 10th, 2011

It has not been a good week for criminal defendants on the statutory interpretation front.  Yesterday, in DePierre v. United States (No. 09-1553), the Supreme Court rejected a narrowing interpretation of a mandatory minimum statute for the third time this week.  (See my posts here and here for the earlier cases.)  DePierre, however, was considerably less contentious (and interesting) than the first two.  The Court unanimously agreed that the term “cocaine base” encompasses all cocaine in its chemically basic form, and is thus not limited to crack, for purposes of the five- and ten-year mandatory minimums that apply to trafficking in cocaine base.  This seems a relatively straightforward matter of plain-meaning interpretation, although it does contradict the way that the Sentencing Commission defines “cocaine base” for purposes of the guidelines.

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SCOTUS Rules That Current Penalties Do Not Govern Whether Prior Conviction Is ACCA Predicate

Monday, June 6th, 2011

I continue to be mystified by the Supreme Court’s jurisprudence on the Armed Career Criminal Act.  The Court has been remarkably active in taking ACCA cases in recent years, but I’m hard-pressed to see much coherence in the outcomes.  On the one hand, there is the Begay line of cases, which have substantially narrowed the definition of “violent felonies” that can be used as a predicate for the ACCA fifteen-year mandatory minimum.  (For background, see my post here.)  Yet, there are plenty of other ACCA cases – many involving short, unanimous decisions, as if the underlying legal issues were entirely unproblematic  – that adopt unnecessarily expansive interpretations of the ACCA triggering language.

Count the Court’s decision today in McNeill v. United States (No. 10-5258) in the latter category.

Here’s the background on McNeill from an earlier post:


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Fowler, Federalization, and Statutory Interpretation

Monday, May 30th, 2011

Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes.  The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.

Here’s what happened.  While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed.  Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).

Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense.  The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer.  There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops.  But does the statute really require the defendant to be thinking about federal involvement?


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