Sunday, July 14, 2013

One cheer for formalism: US edition

In Descamps v. United States (No. 11-9540, decided June 20, 2013), the Supreme Court took a stand in favor of formalism.

The question the Court had to answer was this: when has someone been convicted of burglary? The answer mattered. Michael Descamps faced the possibility, under ACCA, the Armed Career Criminal Act, 18 U.S.C. §924(e), of a 15-year increase in his prison term if he had three earlier convictions “for a violent felony,” and one of the crimes defined as a violent felony is “burglary.”

What’s a burglary? Congress didn’t specify, and different states define the crime differently. That’s troublesome, since it could have meant that the same conduct could count as “burglary” in one state but not another, and therefore that some people would face 15 years of extra imprisonment for conduct that other people did not similarly have to answer for.

To avoid that prospect, as Justice Kagan explains in the first paragraph of her opinion for the Supreme Court,

courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.

Generic burglary, says the Court, requires “breaking and entering” – so if you are invited into someone’s house and while you’re there you take her priceless heirlooms, you’re guilty of various crimes but not of burglary, because you didn’t “break” into the house. Under the categorical approach, therefore, if someone is convicted of a crime called burglary which doesn’t include the element of “breaking and entering,” then that person’s conviction won’t count under ACCA.

But what if someone is convicted under a statute that specifies two forms of what it calls burglary, and the first form does require breaking and entering but the second doesn’t? When dealing with such a “divisible statute,” Justice Kagan explains, courts use the “modified categorical approach.” Under this approach, the court can look to “a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Once the court knows which form of the offense the defendant was convicted of, then it can return to the categorical approach’s assignment of comparing the elements of that particular form of the offense and the generic version of the crime. 

In Descamps, as the majority saw it, the statute was not “divisible.” Rather it was “an ‘indivisible’ statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense.” Specifically, California’s burglary statute covered anyone “‘who enters’ certain locations ‘with intent commit grand or petit larceny or any felony.’” Under this statute, you wouldn’t have to break and enter – though one way of accomplishing your “entry” would be to break in first. The question for the Supreme Court was whether courts should be permitted to consult other documents (notably, the record of Descamps’ guilty plea to the original offense, in which he didn’t disagree with the prosecutor’s assertion that his crime involved a break and entry) to determine whether the offense of which a defendant was convicted must have featured a “break and entry.”

The Supreme Court’s answer is no. In other words, courts faced with an “indivisible” – but broad – statute must simply apply the categorical approach. Under that approach, if the statute doesn’t require a break and entry, then a conviction under it isn’t a burglary conviction for ACCA purposes, even if what the defendant actually did was to break and enter. As the Supreme Court explicitly says: “Whether Descamps did break and enter makes no difference.”

That’s a formalist decision.

But it’s probably the right decision. I won’t review all the arguments the majority makes, but one of them is that the alternative would be that judges in ACCA cases would have to start parsing the records of old cases to try to figure out what defendants actually were convicted of. That’s not easy. Here, for instance, Descamps’ guilty plea to California burglary charges evidently was entered thirty years before he came to face potential increased sentencing under ACCA, and what the plea colloquy shows is just that he didn’t object to the prosecutor’s description of the crime. Does that mean the judge in that case, in accepting the guilty plea, must have found that Deschamps did break and enter? One might wonder.

There’s also a constitutional difficulty: suppose we agree that it’s not entirely clear what Deschamps was convicted for. It might still be possible for a judge to make a well-founded determination on this question. But in doing so that judge would be finding facts about Deschamps’ prior conviction, and a recently established constitutional rule declares that  “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), as quoted in Descamps. It’s quite possible that for an ACCA sentencing judge to determine the facts that underlaid an earlier conviction, rather than just the existence of the conviction (for the right type of offense), would be to violate this rule. That constitutional concern supports interpreting ACCA, the statute which provides for increased sentences, not to allow this sort of judicial inquiry along the way.

As you can see, just explaining where the Court’s formalist rule comes from takes some time. That’s worth remembering: one of the reasons that formalist rules evolve is that the system of laws is complex and elaborate. The whole system is in that sense quite formalist, and it’s not surprising that particular, and thoroughly formalist, rules evolve in various niches of this system. It’s also not surprising that formalist rules might in some circumstances be the best ones, and might actually serve important and broad goals of fairness and constitutionalism. In a system as multi-faceted as this one, there will likely be roles for many different sorts of rules or standards, from formalist to flexible.

It’s also worth recognizing that as any rule evolves, it generates subrules. The “categorical approach” gives rise to the “modified categorical approach.” Moreover, that’s not the end of the matter. The Descamps case itself asked whether a further extension of the “modified categorical approach” should be made, and while the Court rejected that modification it explicitly recognized another complication that still remains for resolution. This is the question of where to find the “elements” of the underlying offense. Must they appear in the text of the underlying statute? Or can also they be part of the offense by virtue of judicial decisions interpreting that text in some non-obvious way?  The Court reserves this question. I imagine there are others as well. The nature of legal propositions is to give rise to the need for other legal propositions.

Finally, it’s important to acknowledge that even though formalist rules can be defined and implemented, they are likely always to rest on somewhat shaky foundations. Here, for instance, the categorical approach looks to determine the “elements” of the offense in question, and the modified categorical approach looks at certain documents from the actual conviction to determine which offense was charged in a case under a “divisible statute.” But what’s an “element” of an offense, and how do you know if a statute is “divisible” or not?

Justice Alito, the only dissenter in the case, says that sometimes statutes define not “elements” but rather “means” of an offense. So a statute might provide that someone commits a crime by using either method A or method B. Is this a “divisible statute,” defining two crimes, the method A crime and the method B crime, or is it a nondivisible statute, defining a single crime that may be committed by either of two methods? Justice Alito says that “[t]he feature that distinguishes elements and means is the need for jury agreement” – if the jury has to settle on one method or the other, then those are elements, but if it can convict while some jurors believe method A was used, and some believe method B was used, then the methods are just means. (To make this concrete: Jurors typically can convict someone for murder based on his having intentionally killed another person; they don’t generally have to agree on whether he used one weapon or another one.)

To whatever extent it’s unclear whether a given underlying statute defines means or elements, it may also be unclear whether it is divisible or indivisible. If we don’t know whether the statute is divisible or nondivisible, then we also don’t know whether to apply the categorical approach or the modified categorical approach. It might also be open to question, as Alito argues, just what sort of statutes the Supreme Court’s earlier decisions applying these approaches were dealing with, and therefore just what the Court’s earlier decisions mean.

The majority responds in a footnote (note 2) that “we can see no real-world reason to worry” about the elements/means issue. That may be so. It seems to me that a legal rule can operate quite smoothly even though there may be unsolved and even unsolvable intellectual problems lurking within it. The system of law isn’t entirely coherent, and any effort to make it so is doomed to fail. But that truth doesn’t mean there’s no role for clear, formalistic rules. They do have their place, even if it in a sense suspended in mid-air.

Friday, July 12, 2013

When liberal defense of federal power to govern results in a criminal conviction being upheld

I've just added a somewhat different version of the paragraphs below to my earlier post in which I'm compiling a list of the Supreme Court cases of the last term in which law school clinics participated in the litigation -- but the case has its own independent interest, for the way that a liberal defense of a broad understanding of federal power led to an affirmance of a troubling instance of the modern regime of sex offender registration statutes.

The case was United States v. Kebodeaux (No. 12-418, decided June 24, 2013). Kebodeaux, who in 1999 "had consensual sex with a 15-year-old girl when he was a 20-year-old Airman in the U.S. Air Force," as Justice Thomas writes in his dissent, was court-martialed, convicted, and served three months in prison. He also received a bad-conduct discharge, and on his return to civilian life became subject to sexual offender registration requirements in a federal statute called the Wetterling Act. Subsequently Congress replaced those requirements with new and in some respects tighter ones, in the Sex Offender Registration and Notification Act (SORNA), passed in 2006. After moving from one Texas city to another, Kebodeaux didn't update his sex offender registration as SORNA required (that is, within three business days of his move), and as a result he was convicted of the crime of failure to comply with the SORNA requirement, a felony, and sentenced to a year and a day in prison. 

There are many things one might want to argue to challenge this conviction. (In the Supreme Court, the Northwestern University Supreme Court Practicum helped represent Kebodeaux, and that's why I've listed it in the earlier post.) As the Supreme Court majority viewed the case, however, it did not feature any challenge based on the argument that Kebodeaux's punishment for violating a statute passed long after his crime and conviction was invalid under either the ex post facto or the due process clauses of the constitution. Instead, the sole issue the Court addressed (though Justice Thomas spoke about more) was whether Congress had any affirmative power to subject Kebodeaux to SORNA at all. That is, the issue before the Court was about the extent of Congress' powers in the first place, not the limits on those powers that constitutional rights might establish. Since obviously no provision of the Constitution expressly authorizes Congress to pass sex offender registration laws, the case was a test of the meaning of the "Necessary and Proper" clause, which enables Congress to pass any laws necessary and proper to carrying out any of the powers of any branch of the federal government. 

As a result, this case became a site of battle over the breadth of federal powers. Four of the conservative justices in one way or another made clear that they were opposed to too broad an understanding of the Necessary and Proper clause (though two of them, Roberts and Alito, found narrower rationales on which to affirm this particular statute's validity). Only Justice Kennedy, among the conservatives, joined in the majority decision, written by Justice Breyer and also joined by Justices Ginsburg, Sotomayor and Kagan -- in short, by the Court's liberal justices. Thus it was primarily the liberals, who might have been expected to find Kebodeaux's situation disturbing, who instead found themselves defending the concept of broad congressional "Necessary and Proper" authority and in the process affirming Kebodeaux's conviction for violating the federal sex offender registration statute. 

I'm pretty sure that qualifies as ironic!

Saturday, July 6, 2013

Celebrating the Fourth of July

Fresh from taking a friend from Germany to our local Fourth of July parade, the first he'd ever seen –

Our friend was amazed, and he knew the U.S. well. I was taken by surprise to realize that the Fourth of July parade isn’t just natural and inevitable, but instead is a particular product of our particular culture. In our town, the parade is one part politics, from socialist to pro-life; another part expert marching bands, from a bunch of different cultures; still another part a display of town government’s big machines (with horns!) such as fire trucks; yet another part sheer commercial display, with floats from businesses around town; and of course antique cars (some younger than me, unfortunately) and Elvis. It might be summed up as one example after another of people promoting themselves and their causes and companies. 

And yet this long display of boosterism is actually fun, and comfortable, and communal. We Americans apparently possess a secret of alchemy, the ability to transmute showing off into sharing. From showmanship, solidarity! From the many, one!