We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DON’T HOLD YOUR BREATH WAITING FOR SHULAR

It’s a fool’s game to try to guess the outcome of a Supreme Court case by reading the oral argument. But still, last week’s Shular v. United States hearing shouldn’t have any inmate giving away the contents of his locker in expectation of quick release.

Shular asks the court to interpret the Armed Career Criminal Act definition of “serious drug offense” to require that a prior state conviction find the defendant “knowingly” handled a controlled substance, which Eddie Shular’s Florida prior did not. His precise question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a “violent felony.”

Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.” The government is arguing that the words following “involving” describe only conduct, regardless of a defendant’s intent.

Justice Alito is clearly skeptical of Shular’s approach. Surprisingly, similar misgivings were voiced by Justices Ginsburg and Kagan, with Gorsuch on the fence but leaning toward the government. Justice Thomas revealed nothing, but is a reliable vote for the government.

Shular argues that without a mens rea requirement, and with the squishy “involving” standard, people could get prosecuted for unknowingly distributing or possessing drugs was misplaced. Justice Alito argued that because ACCA is aimed at repeat offenders, the statute’s penalties are triggered only when a defendant has multiple prior convictions. It was doubtful someone would unknowingly distribute or possess drugs twice.

Justice Breyer asked the government whether its interpretation of “involving” as not including a mens rea requirement would sweep in prior convictions that only tangentially or remotely involved controlled substances. SCOTUSBlog observed that “although Breyer’s skeptical questioning of the government is often a good sign for a criminal defendant, it is unclear if there are five votes for Shular. Some of the court’s textualists had serious misgivings about Shular’s interpretation, and several justices seemed eager to disavow that interpretation to the extent it required courts to construct generic definitions of offenses… The one concern that seemed to unite several of the justices (including unusual bedfellows Gorsuch and Breyer) was the uncertain and potentially expansive reach of the government’s interpretation of the ACCA. Time will tell whether the court is willing to throw the dice and take the risk of going down another ACCA rabbit hole, this one about the possible reach of the word ‘involving’.”

SCOTUSBlog, Argument analysis: Another ACCA rabbit hole? (Jan. 21)

Sentencing Law and Policy, SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument (Jan. 20)

– Thomas L. Root