Today at SCOTUS: Guns or Drugs?
Whenever I teach the federalism portion of my first-year constitutional law course, at least one cynical (but clever) student observes that the juxtaposition between United States v. Lopez (invalidating the Gun Free School Zones Act as beyond the scope of Congressional power) and Gonzales v. Raich (upholding the federal prohibition on possession of marijuana even when it is permissible under state law) has little to do with the Supreme Court's interpretation of the Commerce Clause or the Necessary and Proper Clause; rather, the cynic will say, the Justices (or at least some Justices) like guns but dislike drugs. I usually say that this sort of an explanation may well be correct as a causal account and should certainly inform the giving of legal advice and litigation strategy, but that you can't put it in your brief.
And sure enough, the briefs in Brown v. United States -- in which the SCOTUS is hearing oral argument today -- do not directly appeal to the Justices' priors regarding guns or drugs. But interestingly, the case involves both. Here I'll provide a summary of the issue, which requires a detailed explanation but is not in fact complicated, before offering an observation about the nature of statutory interpretation.
Brown and its companion case, Jackson v. United States, both concern the term "serious drug offense" as used in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). That statute provides for a substantial sentencing enhancement for a felon in possession of a firearm where the defendant has three prior convictions for a "violent felony or a serious drug offense." The statute goes on to define "serious drug offense" to include any state law offense involving a drug for which federal law "as defined in" the Controlled Substances Act prescribes a maximum sentence of ten years or more.
Brown and Jackson present the following question: as defined when?
Defendants Brown and Jackson each had prior drug convictions under, respectively, Pennsylvania law and Florida law. At the time of their state convictions, the drugs they possessed were defined under state law co-extensively with the federal definitions of the respective controlled substances: marijuana and cocaine. However, by the time of Brown's sentencing, Congress had changed the statutory definition of marijuana to exclude hemp, which was covered by the Pennsylvania statute at the time of Brown's offense. And by the time that Jackson was apprehended for violating the federal felon-in-possession statute, the Drug Enforcement Administrator had removed the cocaine derivative ioflupane from the list of scheduled substances, even though the Florida statute under which Jackson was convicted covered ioflupane at the time of his state offense.
An odd wrinkle is that Brown's Pennsylvania conviction rested on a showing that he possessed regular marijuana, not hemp, while Jackson was convicted of possessing regular cocaine, not ioflupane. However, as all parties agree, cases construing the ACCA call for a comparison of the statutory offenses, not the particular individual's conduct. Thus, because Brown could have been convicted for hemp possession under the Pennsylvania statute under which he was charged and Jackson could have been convicted for ioflupane possession under the Florida statute under which he was charged, both of their cases present the timing question.
There are three plausible answers to the defined when? question. Not surprisingly, each of the defendants and the Solicitor General defend an answer that serves their own interests.
The SG says the key date is when the state offense occurred. If federal law at the time would have prescribed a maximum sentence of ten years or more at the time, then that means that the defendant committed a serious offense when he committed it. And because the ACCA is all about punishing hardened criminals, the fact that the offense was serious when committed is what matters. Or so the SG argues.
Lawyers for Jackson (including the Stanford Law School Supreme Court Litigation Clinic) say the key date is when the defendant committed the federal offense. They invoke the default that the law that applies to an offense is the law that was on the books when the offense took place. Here's their argument in a nutshell: "if Congress amended ACCA to exclude burglary convictions from its reach, and a person later committed a federal firearm offense, a prior burglary conviction would not qualify as an ACCA predicate—even if ACCA had covered burglary at the time of that prior conviction." Likewise for drug offenses. QED.
Brown's argument for making the date of sentencing the key is perhaps the least intuitive. After all, the date on which a defendant is sentenced is unrelated to either the underlying predicate state offense or the new federal offense. It depends fortuitously on a host of factors, including trial delays. Nonetheless, Brown's argument is not crazy. We can think of the ACCA as a kind of "four strikes and you're out" rule. It aims to lock up dangerous people for a long time. If at the time of sentencing the judgment of the political branches as reflected in amendments to the federal drug laws is that one of the underlying predicates wasn't serious after all, then the defendant isn't so bad after all. Or at least that's the logic.
Are those the only possibilities? Not necessarily. One could invoke the rule of lenity to say that if federal law would not make the state offense a "serious drug offense" at any of the key three times, then it doesn't count as a serious drug offense. To be sure, there's something odd about applying the rule of lenity here, given that both Brown and Jackson are taking advantage of the removal from the federal schedule of substances (hemp and ioflupane) that neither possessed. Is there any realistic possibility that either of them--or any defendant ever--consulted, compared, and contrasted the respective state and federal codes at any point in deciding how to act? But of course, this objection proves too much. The rule of lenity is rooted in due-process notice based on the clarity (or lack thereof) in statutes that the vast majority of people subject to the criminal law never read. So there's no special reason not to apply the rule of lenity here if one applies it anywhere else.
Putting aside the all-of-the-above option that the rule of lenity would counsel, how should the case come out? I haven't a clue. Each of the briefs proceeds as though the rule it proposes is somehow dictated by the statutory text understood in light of well-accepted background understandings. In fact, however, it's perfectly clear that the statutory language, even read in light of those background understandings, is highly under-determinative as to the question presented.
In such cases, we are accustomed to the Justices indulging (whether or not consciously) their ideological priors. Here those priors are unclear. The more liberal Justices don't like guns but are probably inclined to think that Congress has over-criminalized drug offenses. The more conservative Justices are not especially troubled by drug criminalization; nor are their Second Amendment sensors likely to be activated by the "bad guy with a gun" scenarios these cases present; but as we saw during the oral argument in Rahimi, especially where federal gun crimes are involved, they can be due process sticklers who worry about notice.
Given that mixed bag, I won't make any predictions until after the oral argument. Or to really stack the odds in my favor, perhaps I'll wait until after the opinion is issued to predict the outcome!