{"id":13578,"date":"2011-06-01T13:14:36","date_gmt":"2011-06-01T18:14:36","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13578"},"modified":"2011-06-01T13:16:44","modified_gmt":"2011-06-01T18:16:44","slug":"fowler-federalization-and-statutory-interpretation","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/06\/fowler-federalization-and-statutory-interpretation\/","title":{"rendered":"Fowler, Federalization, and Statutory Interpretation"},"content":{"rendered":"

Brown v. Plata<\/a> <\/em>grabbed the headlines last week, but the Supreme Court\u2019s decision in\u00a0Fowler v. United States<\/em> (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes. \u00a0The case also nicely illustrates the way that the Court\u2019s stereotypical ideological divisions (so starkly manifest in\u00a0Brown<\/em>)\u00a0break 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.<\/p>\n

Here\u2019s what happened. \u00a0While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed. \u00a0Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime \u201cto kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer\u201d of \u201cinformation relating to the . . . possible commission of a Federal offense,\u201d 18 U.S.C. \u00a7 1512(a)(1)(C).<\/p>\n

Fowler\u2019s 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. \u00a0The only question in the case was whether Fowler had the intent to prevent communication\u00a0to a federal law enforcement officer<\/em>. \u00a0There 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. \u00a0But does the statute really require the defendant to be thinking about federal involvement?<\/p>\n

<\/p>\n

The Eleventh Circuit interpreted this element such that the government need only prove \u201cpossible or potential\u201d communication to federal authorities. \u00a0One problem with this interpretation is that it means it will almost always be a federal offense when a witness is killed to prevent the witness from reporting\u00a0any<\/em> crime to\u00a0any <\/em>authority. \u00a0Given how broad the federal criminal code is and how much it overlaps with state codes, it will usually be possible to say that communication with federal authorities regarding a federal offense was \u201cpossible or potential.\u201d \u00a0The Eleventh Circuit\u2019s interpretation would thus mark a significant expansion of the already wide reach of federal criminal law.<\/p>\n

Against this backdrop, three options were on the table for the Supreme Court: (1) adopt the Eleventh Circuit\u2019s interpretation, (2) require the government to prove that the victim actually would have reported the crime to federal<\/em> officers, or (3) find a middle ground. \u00a0(A fourth possible option, that the government must prove that the defendant intended to prevent the victim from reporting the crime to a person whom the defendant\u00a0knew to be a federal officer<\/em>, was apparently ruled out in light of a portion of the statute saying that \u201cno state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government,\u201d 18 U.S.C. \u00a7 1512(g)(2).)<\/p>\n

An ideologically unusual coalition of six justices (Breyer, Roberts, Kennedy, Thomas, Sotomayor, and Kagan) chose the middle-ground option. \u00a0Specifically, they held that the government \u201cmust show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer\u201d (slip op. at 1).<\/p>\n

The various opinions in the case put on display a number of the different considerations the Court takes into account when interpreting criminal statutes. \u00a0Thus, for instance, the majority rejected the Eleventh Circuit\u2019s approach on the basis of the surplusage and federalism canons:<\/p>\n

Often, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well. And where a federal crime is at issue, communication with federal law enforcement officers is almost always a possibility. Thus, to allow the Government to show only a mere possibility that a communication would have been with federal officials is to permit the Government to show little more than the possible commission of a federal offense. (That is to say, the latter showing by itself would almost automatically show the statutorily necessary connection with a federal law enforcement officer.) The \u201cpossibility\u201d standard would thereby weaken or eliminate the independent force of the separate statutory requirement that the defendant, in killing the victim, must intend to prevent communication with one who is \u201ca law enforcement officer or judge of the United States.\u201d 18 U. S. C. \u00a71512(a)(1)(C) (emphasis added);\u00a0see <\/em>\u00a71515(a)(4) (defining \u201claw enforcement officer\u201d as \u201can officer or employee of the Federal Government\u201d (emphasis added)). Cf. Duncan v. Walker<\/em>, 533 U. S. 167, 174 (2001) (normally we must give effect \u201cto every clause and word of a statute\u201d (internal quotation marks omitted));\u00a0Ratzlaf v. United States<\/em>, 510 U. S. 135, 140\u2013141 (1994) (expressing particular reluctance to \u201ctreat statutory terms\u201d as \u201csurplusage\u201d \u201cwhen the words describe an element of a criminal offense\u201d).<\/p>\n

Moreover, because of the frequent overlap between state and federal crimes, the use of a standard based on the word \u201cpossible\u201d would transform a federally oriented statute into a statute that would deal with crimes, investigations, and witness tampering that, as a practical matter, are purely state in nature.\u00a0See, e.g<\/em>., Dept. of Justice, Bureau of Justice Statistics, (FY 2008 Persons arrested and booked, Drug offense: Marijuana), http:\/\/bjs.ojp.usdoj.gov\/ fjsrc; Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Arrests), http:\/\/ www2.fbi.gov\/ucr\/cius2008\/arrests\/index.html; (Table 29), http:\/\/www2.fbi.gov\/ucr\/cius2008\/data\/table_29.html\t(In 2008, 0.7% of arrests for marijuana offenses were made by federal law enforcement officers);\u00a0see also Jones v. United States<\/em>, 529 U. S. 848, 858 (2000) (\u201c[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes\u201d (internal quotation marks omitted)). \u00a0(9-10)<\/p><\/blockquote>\n

I think it is particularly interesting to see the Court breathe new life into the\u00a0Jones <\/em>principle that federal statutes should not be interpreted so as to \u201csignificantly change[] the federal-state balance in the prosecution of crimes.\u201d \u00a0If applied consistently and rigorously, the canon could have implications for the interpretation of many federal criminal statutes.<\/p>\n

In a concurring opinion, Justice Scalia adopted an even more aggressively narrowing interpretation (option 2 above). \u00a0I think his criticisms of the majority opinion are on target, as is his basic approach to interpreting the statute:<\/p>\n

In my view, the Government must prove that the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer. The Court\u2019s vague \u201creasonable likelihood\u201d standard has no basis in the statutory text and will serve only to confuse judges and juries. . . .<\/p>\n

Section 1512(a)(1)(C) of Title 18 makes it a federal crime \u201cto kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense.\u201d Viewed in isolation, this provision contains an ambiguity: Does the mens rea of the statute include a specific intent to prevent communication to a law enforcement officer of the United States; or is it satisfied by the mere intent to\u00a0prevent communication to a law enforcement officer who happens to be a law enforcement officer of the United States?<\/p>\n

Happily, a different statutory provision resolves this ambiguity. It states that \u201cno state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.\u201d \u00a71512(g)(2). This makes clear that the first possibility is wrong, and the second right. But removing the \u201cfederal officer\u201d requirement as an element of the statute\u2019s mens rea does not remove it as an element of the actus reus\u2014that is, as an element of the facts that must be proved for conviction. It must be proved, and proved beyond a reasonable doubt, that the communication intended to be prevented was communication to a federal officer. \u00a0(1-2)<\/p><\/blockquote>\n

Scalia also invokes the rule of lenity and criticizes the majority\u2019s mushy purposivism:<\/p>\n

The Court also proclaims that a narrower view \u201cwould conflict with the statute\u2019s basic purpose,\u201d which is to prevent witness tampering \u201cat a time when the precise communication and nature of the officer who may receive it are not yet known.\u201d Ante, at 4. It cites no basis for attributing that purpose, and there is none\u2014other than the fact that it supports the Court\u2019s outcome. Another purpose is just as likely . . . . Murder, after all, is a crime, and often a capital crime, under all state laws. There is no reason to ascribe to Congress the \u201cpurpose\u201d of transferring murder prosecutions that would ordinarily be brought in state court to federal court based on only a tangential federal interest. Congress was concerned with preserving the integrity and effectiveness of federal prosecutions, and where they are not clearly involved . . . a federal murder prosecution has no proper place. Limited as I have suggested, the federal law would still have ample scope, reaching what were surely the principal cases Congress had in mind\u2014the killing of prospective witnesses in federal trials or in ongoing federal investigations. Here, as would be the case in many situations involving a merely hypothetical link to a federal investigation, Fowler murdered a state police officer. The natural place to have prosecuted him would have been state court.<\/p>\n

The Court\u2019s analysis is even less persuasive in light of the rule of lenity, under which we must construe ambiguous criminal statutes in favor of the defendant. Here, the Court adopts a kind of rule of harshness, discarding the most straightforward construction of the text in favor of textually implausible one, based on vague intuitions about the statute\u2019s purpose. \u00a0(4)<\/p><\/blockquote>\n

Rounding out the opinions, Justices Alito and Ginsburg (another strange-bedfellows pairing) dissented, favoring the Eleventh Circuit\u2019s approach.<\/p>\n

Cross posted at Life Sentences.<\/p>\n","protected":false},"excerpt":{"rendered":"

Brown v. Plata grabbed the headlines last week, but the Supreme Court\u2019s decision in\u00a0Fowler 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. \u00a0The case also nicely illustrates the way that the Court\u2019s stereotypical ideological divisions (so starkly […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,24],"tags":[],"class_list":["post-13578","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13578","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13578"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13578\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13578"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13578"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13578"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}