Supreme Court Review: lessons in post-Apprendi litigation

As the new Term begins, our office’s annual review of Supreme Court decisions from the criminal defense perspective is available here: Reviewing The Supreme Court 2004-05 Term From A Defense Perspective. Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions.

The basic lesson on how best to litigate for our clients in the post-Apprendi, post-Blakely world is illustrated by a recent sentencing in Utah. Professor Paul Cassell, after his famous advocacy against Miranda came to an end in Dickerson, became Judge Cassell of the District of Utah. Very soon after taking the bench, he was confronted with the nightmare case of Weldon Angelos: a first-time offender who carried a gun to several sales of marijuana. Back in 1993, Justice Scalia, in a classic exercise of his textualism, read 18 U.S.C. § 924(c) to require consecutive mandatory minimum sentences for use of a firearm in six bank robberies charged in a single indictment (Deal). Judge Cassell, faced with the inexorable math of five years followed by two successive 25 year consecutive sentences, and a prosecutor who refused to make reasonable charging decisions, put out a call for any theories that could help him avoid imposing an outrageous sentence.

To no avail. He heard theories about due process, cruel and unusual punishment, equal protection. But he felt constrained by constitutional precedent that bound him to a sentence he characterized as "unjust, cruel and irrational." So he imposed the 55-year sentence, complete with a plea to Congress to rewrite the laws and to President Bush to commute the sentence he imposed (available here).

What seems to have been missed is the statutory language. § 924(c) defines "crime of violence" (such as bank robbery) narrowly to refer to "an offense". In contrast, "drug trafficking crime" means "any felony." This statutory difference in language reflects Congress’s intention that the questions be approached differently. Which makes perfect sense in light of the Guidelines grouping policies: crimes of violence are treated as separate offenses under Chapter 3, while drug trafficking offenses are treated as a single offense with a cumulation of the drug quantity. Which also makes perfect policy sense because drug crimes can be charged to simply require a two-level gun bump or can be fragmented into multiple offenses based on the prosecutor's creativity in drafting the indictment. And a statutory ruling would avoid the necessity of addressing the troubling constitutional issues. Professor Erik Luna, in his appeal of the Angelos case, is giving the Tenth Circuit the opportunity to consider some powerful constitutional arguments, but resolve the case based on the statute.

Almost every important post-Apprendi, post-Blakely issue is susceptible of layered arguments: the Fifth and Sixth Amendment issues undergirded by statutory arguments based on the Doctrine of Statutory Avoidance and other canons of statutory construction. The Blog Summary on the right sets out arguments on reasonable doubt, confrontation at sentencing, the Armed Career Criminal Act, and the illegal reentry statute that raise constitutional doubt, then invite ruling on statutory grounds. Why try to kick a 55 yard field goal when you get the same points from 35 yards out? Why only argue that Almendarez-Torres has been overruled when reinterpretation of a statute under the Doctrine of Constitutional Avoidance reaches the same result?

If you still have doubt about the efficacy of layering the statutory arguments, check out this article (linked from the ever-helpful Professor Doug Berman) by Professor Ward Farnsworth on Signatures of Ideology: The Case of the Supreme Court’s Criminal Docket. His chart on page 3 breaks out the Justices' voting in non-unanimous cases involving criminal law issues. The Justices are ranked by frequency of voting with the government, and therefore against the individual, in both constitutional and non-constitutional cases. For the most conservative of the Justices, with the exception of Justice Thomas, favorable rulings are significantly more frequent on statutory than on constitutional grounds. My bet is that our district and circuit judges would have an even greater preference for favorable statutory rulings over favorable constitutional rulings.

If we can establish constitutional doubt, the defendant should always win under the Doctrine of Constitutional Avoidance. If we can establish statutory ambiguity, the defendant should always win under the Rule of Lenity. Although the government has no equivalent rule of construction, we know that our clients sometimes lose because they are defendants, because they are accused of crime, and because the government receives an often unwarranted level of deference from the courts. But the overall lesson from the 2004-05 Term is that the Justices are intensely interested in statutory construction, want to avoid reaching unnecessary constitutional decisions, and are quite willing – on occasion – to apply the rules of statutory construction to the advantage of our clients.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon