This week, the U.S. Supreme Court granted certiorari in four new criminal-justice cases. Garrett Epps of the University of Baltimore, writing for The Atlantic outlines the four
cases:
- Whether
a state can make it a state crime for an undocumented immigrant to use a stolen
Social Security number that has been used to find a job;
- Whether
a state can simply abolish the insanity defense in criminal cases;
- Whether
a state jury can convict a criminal defendant by a vote of 11–1 or 10–2, rather
than unanimously; and
- Whether
Lee Boyd Malvo, one of the most infamous multiple murderers in American
history, must receive a new sentencing hearing because he was a juvenile at the
time he participated in the Beltway sniper attacks that left 10 people dead in
2002.
Let’s
start with the immigration-crime case. Kansas v.
Garcia is a test of statutory language in the Immigration
Reform and Control Act (IRCA) of 1986, the last truly comprehensive
immigration-reform statute. Among its other effects, IRCA is why, when
employees begin a new job, they must file a federal I-9 form attesting that
they are American citizens—and attaching documents such as a birth certificate
or passport to prove that the attestation is true.
The
three defendants in Garcia are undocumented immigrants. They used
other people’s Social Security numbers on I-9s when they found work in Kansas,
as well as on Kansas state documents required to file taxes or rent housing.
Kansas authorities prosecuted all three under state “identity theft” statutes
that prohibit use of the documents or identifying numbers of another person to
commit fraud or “obtain any benefit.”
At
trial, the defendants pointed to the section of IRCA that imposed the I-9
requirement. That section says that the I-9 form, and “any information
contained in or appended to such form,” can be used only to enforce specified
federal crimes. That meant, they argued, that federal law “preempts” state laws
seeking to punish any use of the “information” provided by a worker, even if
false. The state’s response was that the language covers only use of the
information on an I-9 form itself; it can’t, Kansas said, be read to
immunize a worker who uses the same information on a separate form to pay state
taxes, gain a driver’s license, or do other business with the state.
Federal
preemption is a dense subject. Congress has certain enumerated powers under the
Constitution. When passing laws under those powers, it may take specific areas
out of state jurisdiction altogether. It does this by saying, “This law
preempts state law” (explicit preemption), or by passing a statutory scheme
that either directly conflicts with a state statute or is so comprehensive that
it “occupies the field” (“implied preemption”). The Kansas Supreme Court concluded
that IRCA explicitly forbids states to penalize the use of the same
information. That reading isn’t nonsensical; one purpose of IRCA was to make it
easier for undocumented immigrants to comply with the law without fearing
prosecution. In its appeal to the Supreme Court, however, Kansas points to
language in the same section of IRCA that says the statute preempts all state
laws punishing employers for any errors on their workers’ I-9 forms.
That language, Kansas argues, omits state or local laws punishing the
employees themselves.
The U.S.
government has filed an amicus brief asking the Court not to find “explicit
preemption” in the statute’s language. That reading, it argues, makes no sense:
“On respondents’ logic, Kansas could prosecute a U.S. citizen who presents a
stolen driver’s license for identity theft even if he also appended that stolen
license to his I-9, but a state prosecution of an unauthorized alien in the
same position would be expressly preempted.” It asks the Court to go further
and hold that the IRCA section doesn’t “implicitly” preempt state laws either,
and to avoid any broad constitutional ruling on federal immigration power and
state law.
The
stakes in the case are fairly high; a green light for this statute would create
pressure to pass similar statutes elsewhere.
Kahler v.
Kansas also concerns a Kansas statute—one that in essence abolished
the age-old “insanity defense” to a criminal charge. For more than half a
millennium, English and American courts have held that “insanity” (now a legal,
not medical, term) negated a defendant’s criminal responsibility; by the 19th
century, that term had been defined as a mental disease that rendered the
defendant either unable to understand “the nature and quality” of what he was
doing (thinking the victims were actually haystacks rather than humans, for
example) or unable to discern that his actions were wrong. (Some courts used to
explain this prong by saying that if defendants would still have committed the
crime with a police officer standing nearby, they were legally insane—if not,
not.)
That
defense fell into some popular disrepute after John W. Hinckley, who attempted
to assassinate President Ronald Reagan in 1981, was acquitted for reasons of
insanity. Since then, legislatures have experimented with ways of cutting back
on the traditional rule. Kansas went further than most. In 1996, its
legislature passed a law eliminating the defense entirely—unless the defendant was
able to show that he or she was so mentally impaired as to be unable to form
the “mental state” necessary to violate the law. A defendant unable to form the
“intention” to kill could not be convicted, but one who could “intend” to shoot
or kill could be, regardless of how distorted the subjective reasons for doing
so.
James K.
Kahler, the petitioner in this case, went to his ex-wife’s grandmother’s house
on Thanksgiving 2009 and killed the grandmother, his ex-wife, and the couple’s
two daughters. At trial, his lawyers offered evidence that he was suffering
from major depressive and obsessive-compulsive disorders, among others. A
defense expert testified that Kahler “felt compelled” to kill and was, for that
period, “completely out of control.”
That
defense might or might not have satisfied a jury under the old statute, but in
Kahler’s case, the jury was permitted to decide only whether Kahler had the
intent to kill; they concluded he did and sentenced him to death. The state
supreme court rejected his constitutional challenge to the insanity law. Now
his lawyers ask the Court to hold that blocking a traditional insanity defense
violates the Eighth Amendment’s ban on “cruel and unusual” punishment.
Besides
Kansas, three other states—Idaho, Montana, and Utah—have abolished the insanity
defense completely; a fourth, Alaska, has truncated the defense so as to allow
conviction even if a defendant didn’t understand right from wrong at the time
of the crime. In seven others—California, Colorado, Louisiana, Minnesota,
Mississippi, Nevada, and Washington—courts have suggested one way or another
that the Constitution requires courts to allow such a defense. The “no
insanity” states are therefore outliers, and the cert. grant suggests there’s
some desire among the justices to bring them to heel. But only four were needed
for the grant; a decision for Kahler will require five.
It seems
likely that the Court granted cert. in the next case, Ramos v.
Louisiana,to reverse. The issue in Ramos has been mooted many
times since a widely reviled 1972 Supreme Court decision called Apodaca v.
Oregon.
The
decision in Apodaca is a shambles. Four justices argued that the
Sixth Amendment didn’t require unanimous juries at all, in either state or
federal trials; four others wrote that the amendment did require unanimous
juries in both state and federal trials. Justice Lewis F. Powell Jr.,
relatively new to the Court, wrote a bizarre opinion suggesting that the
amendment did require unanimous juries in federal trials but that,
even though the amendment applied to the states by virtue of the Fourteenth
Amendment, it somehow applied in a limited form that did not require
unanimous verdicts in state cases.
Nobody
today thinks that Powell’s rule makes any sense, but both Oregon and Louisiana
have continued to apply their jury rules, and dozens of defendants have begged
the high court to revisit the issue. Next term it will. (Louisiana’s voters
last November approved a referendum imposing a unanimity requirement for trials
beginning on January 1 of this year. The state argues that this moots the case,
but a lot of people already in prison in Louisiana think they should have the
benefit of the unanimous-jury rule, and will do more hard time if they don’t
get it.)
Evangelista
Ramos was convicted of second-degree murder by a Louisiana jury in 2016. The
jury split 10–2 after hearing mostly circumstantial evidence. After the
conviction, Ramos’s appointed counsel argued on appeal that the evidence was
insufficient, but in a separate brief, Ramos, proceeding without a lawyer,
raised the unanimous-jury issue. The state appellate courts rejected his brief.
Then a
Louisiana criminal-justice reform nonprofit called the Promise of Justice Initiative filed
a cert. petition for Ramos. On Monday, the U.S. Supreme Court agreed to take up
his case. Ramos’s new lawyers cite historical evidence that the
non-unanimous-jury rule was adopted in 1898 by a state constitutional
convention called with the express purpose of, as the president of the
convention put it, “establish[ing] white supremacy in this state.” This
evidence, they suggest, shows that the non-unanimous rule was put in place precisely
to prevent minority jurors from blocking a white majority’s decision to punish
black defendants.
The
Court has recently shown some enthusiasm for decisions that the Fourteenth
Amendment “incorporates” all the provisions of the Bill of Rights. In 2010, it
held that the Second Amendment “right to bear arms” applies full force against
the states; last month it reached the same conclusion about the “excessive
fines” clause of the Eighth Amendment. Taking down the embarrassing Apodaca rule
may be part of that long-term judicial project.
Finally,
in Mathena
v. Malvo, the Court will decide whether Lee Boyd Malvo, one of the two
Beltway snipers, is entitled to a new sentencing procedure. Malvo, who was 17
at the time, roamed the highways of the District of Columbia and Maryland,
along with John Allen Muhammad, a quarter century his senior; the two randomly
shot and killed 10 people at a distance with a high-powered rifle. Malvo was
tried and, in 2004, sentenced to life in prison without parole; Muhammad was
executed by Virginia in 2009.
However,
in a 2012 decision called Miller v. Alabama, the Supreme Court decided
that, in most cases, a mandatory “no parole” sentence violates the Eighth
Amendment rights of defendants who were underage at the time of their crimes.
Because children can change so much as they mature, the Court reasoned, such
prisoners are entitled to a chance to show that they might, someday, be safe to
release on parole—and an automatic no-parole sentence denies them that chance.
Then, in 2016, in Montgomery v. Alabama, the Court announced that
the Miller rule was retroactive. That meant courts must apply it to
state cases of defendants who were already convicted, but were seeking review
of their sentences.
Malvo
sought such review in federal court in Virginia. A federal district judge held
that he was entitled to a new sentencing procedure, and the Fourth Circuit
affirmed. Virginia had argued that it actually was a “discretionary”
sentence—since under long-standing Virginia rules, the trial court could have
suspended some or all of Malvo’s life term. The Fourth Circuit concluded that
the judge who sentenced Malvo believed that he had no such discretion.
But even
if the Virginia rule made the sentence discretionary, the appeals court argued,
the Montgomery decision required setting it aside. That’s because,
the court said, Montgomery held that a no-parole sentence can’t be handed
down unless the sentencing judge specifically finds that the defendant’s
“‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient
immaturity of youth.’”
It’s
hard to imagine that the justices burn with compassion for Malvo (most of them
were living in the region in 2002, when everyone was terrified of being shot at
the gas pumps). But the high court almost had to take this case, because the
Fourth Circuit’s reading of Montgomery directly conflicts with the
Virginia Supreme Court’s. The Virginia court reads the decision to apply only
to mandatory sentences—rendering the need for a judicial finding of
“incorrigibility” unnecessary. The prospect is that prisoners who appeal to the
state court will be turned down under its rule, then immediately petition the
federal courts—and win. Something has to give.
All
together, these cases show a Court trying honorably to play its role as
supervisor of the criminal-justice system—and it may be poised to make things
better. In a season of dread, Monday’s order provides reason to hope that some
small good news may be on the way.
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