Lenity and Mandatory Minimums

This is the third in a series of posts reviewing last term’s criminal cases in the Supreme Court and previewing the new term.

Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s.  The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy.  In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.

The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant.  As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron).  A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009).  I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”

In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums.  Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.” 

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Constitutional View, Not Catholicism, Behind Scalia’s Opinions on Abortion

scaliaAs a Catholic whose views are in line with those of Pope Benedict XVI, US Supreme Court Justice Antonin Scalia personally opposes abortion.

But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

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Seventh Circuit Criminal Case of the Week: A Second Amendment Blockbuster (or Maybe Not)

seventh circuitSo, the Heller revolution may have legs after all.  In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court breathed new life into the moribund Second Amendment, holding that there is indeed an individual right to bear arms.  Heller seemed to mark a major shift in Second Amendment jurisprudence and cast a shadow over much gun control legislation.  On the other hand, the Heller Court was remarkably coy about many aspects of the individual right to bear arms, leaving open the possibility that Heller would prove no more than a flash in the pan.

When Heller was decided, I was reminded of United States v. Lopez, 514 U.S. 549 (1995), in which the Court seemed to overturn a half-century of precedent on the scope of Congress’s Commerce Clause power.  A revolution (or, perhaps more accurately, a counter-revolution) seemed afoot.  I was a law student then, and I vividly recall — just hours after Lopez was handed down — one of my professors announcing in class, only half facetiously, that the Supreme Court had just overturned the New Deal.  Then, when I clerked for a federal judge after law school, I recall several defendants raising Lopez challenges to federal criminal statutes.  But it all came to nought.  The lower federal courts never really bought into the Lopez revolution — if you keycite Lopez today, you will see 267 cases listed as either declining to extend or distinguishing Lopez — and the Supreme Court itself effectively threw in the towel with its decision in Gonzales v. Raich, 545 U.S. 1 (2005).

I have been wondering if the Heller revolution would go the way of the Lopez revolution.  And, indeed, it has seemed generally to be business as usual in the circuit courts post-Heller, with little sense that the intermediate appellate judges have any inclination to read Heller for all it is worth.

But the Seventh Circuit’s decision last week in United States v. Skoien (No. 08-3770) (Sykes, J.) suggests that Heller may have more life than Lopez. 

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