Tuesday, February 26, 2008

Thoughts On The Watson Concurrence And Statutory Construction

Federal defenders frequently need to brief statutory construction, pushing back against attempts to expand crimes and punishments beyond the words used in statutes and guidelines. Following threads from a recent concurrence, we can benefit from structural hints on how to brief questions of statutory interpretation.

Justice Ginsberg added a short concurrence to the unanimous Watson opinion’s holding that “use” of a firearm under 18 U.S.C. § 924(c) did not include trading drugs for a gun. Justice Souter, writing for the Court in Watson, reasoned that receiving the firearm was not a “use” based on the “ordinary and natural” meaning of the word – or “the language as we normally speak it.” The Court distinguished the Smith case, from fifteen years earlier, in which a divided Court had found that trading a gun for drugs constituted a “use”, triggering § 924(c)’s mandatory minimum. Justice Ginsberg, in a solo concurrence in Watson, would have overruled Smith based on the “reasons well stated” in Justice Scalia’s dissent in Smith. Revisiting that dissent, I am reminded of why Justice Scalia’s approach to statutory construction often provides federal defenders with an effective structure when we are layering constitutional and statutory arguments.

Justice Scalia wrote the book on statutory construction: A Matter Of Interpretation. For federal defenders, Justice Scalia’s call for textual loyalty and his opinions putting theory into practice provide two sources of argument: rules of construction that apply to all advocates but relieve defendants of pro-incarceration bias; and precedent requiring unstinting application of rules that prevent ambiguous statutes from morphing into pro-incarceration law.

As a craftsman in the practice of statutory interpretation, Justice Scalia provides a useful approach to the canons of construction. When the words work our way, Justice Scalia’s textualism requires respect for – and stopping at – the plain meaning of the statute’s words. The “ordinary or natural” meaning of the words have become a common starting point, from Bailey, to Leocal, to Watson, to the argument in Cuellar this week.

In A Matter of Interpretation, Justice Scalia urges us not to be shy about common sense rules of interpretation just because they are commonly expressed in Latin, such as expressio unius est exclusio alterius, noscitur a sociis, and ejusdem generis. So we mine the reported decisions for the strongest support for helpful rules, which show up in treatises, law reviews, and blogs. In addition to the usual suspects of construction, Justice Scalia adds such exotica as the somewhat oxymoronic “rule of the last antecedent,” according to which “a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows” (Jama).

Rigorous application of the rules of construction frequently helps the defense: Justice Scalia’s textual loyalty purports to be blind to results. “We begin with the understanding that Congress ‘says in a statute what it means and means in a statute what it says there.’” (Hartford Underwriters) (Or, as Dr. Seuss would have said, “Congress meant what it said, And it said what it meant, A textualist’s faithful, One hundred per cent.”) If Congress enacted a law that lets a morally reprehensible actor off the hook, so be it. As he said during the Cuellar oral argument, there may be a gap in the statutes that fails to criminalize someone “obviously doing something very bad”: “I don’t know why we should torture either one of the statutes to close [the gap].”

Of course there is a cold and cruel downside. Textual loyalty means that, even if the result was not contemplated by the legislators, the judge does not bat an eye at a harsh outcome: multiple mandatory consecutive sentences for armed bank robberies charged in a single indictment (Deal), so be it; deportation of a Somali to a country where he may well be shot on the tarmac (Jama), so it goes. As Justice Scalia wrote, “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.”

But Justice Scalia’s approach to ambiguity always protects the criminally accused from greater incarceration. This approach is manifested in three related principles that give meaning in the real world to the idea that liberty can only be taken in conformance with the clearly stated intention of the legislature: rejection of legislative history as a guide to construction (R.L.C.); the doctrine of constitutional avoidance (Martinez); and the rule of lenity. From Moskal to Smith to James, no justice has advocated application of the rule of lenity with greater frequency than Justice Scalia. His dissent in James reflects his strong commitment to certainty in penal states: “[W]e have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.”

But there are limits to construction. Another aspect of Justice Ginsberg’s concurrence is that she was alone – not even Justice Scalia, as the author of the Smith dissent, joined her. This highlights Justice Scalia’s usual adherence to stare decisis on statutory matters: once the Court construed § 924(c) to require that “use” included trading a gun for drugs, the converse – trading drugs for a gun – could only be addressed in the context of the previous construction.

The prime example of Justice Scalia’s willingness to follow a construction he had previously rejected is our Martinez case, which involved the indefinite detention of Mariel Cubans who were inadmissible but could not be returned to Cuba. Earlier, in Zadvydas, Justice Scalia sharply dissented from Justice Breyer’s construction of the conditional release statute to limit detention to six months for deportable – as opposed to inadmissible – aliens. In Martinez, Justice Scalia followed the statutory text – exactly as interpreted in Zadvydas – to conclude that the same words had to mean the same thing for both deportable as well as inadmissible aliens. It will be interesting to see if the construction of the habeas corpus statute in Rasul, to which Justice Scalia dissented, finds any loyalty in his analysis of the rights of Guantánamo prisoners in the pending Boumediene case.

Justice Scalia’s silence on the validity of the Smith decision is also notable because, in A Matter of Interpretation, he refers extensively to his Smith dissent as providing a clear line of demarcation between strict constructionism, of which he disapproves, and his brand of textualism (pages 23-24). In describing his approach, it sounds as if we’ve moved from Dr. Seuss to Goldilocks’ search for porridge that is just right: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Justice Scalia speaks of regret at the Court’s decision in Smith, unsure whether it resulted from the Court’s hyper-textualism or “because they are not textualists at all.” I wonder if the Watson concurring words were balm on an old wound.

As we structure our arguments on behalf of clients in trial courts and on appeal, Justice Scalia provides a good target for how to articulate the constructions most favorable to our clients: start at the ordinary and natural meaning of the language; look for support among the canons of construction; and, if there is still ambiguity, embrace the tie-breaker rules of interpretation that always favor the criminally accused.

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


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