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

SCOTUS NARROWS REACH OF IMMIGRATION STATUTE IN ORDER TO SAVE IT

The Supreme Court ruled last Friday in United States v. Hansen that 8 USC 1324(a)(1)(A)(iv) – which prohibits “encourag[ing] or induc[ing]” illegal immigration – “forbids only the intentional solicitation or facilitation of certain unlawful acts.”

The 9th Circuit had held that the statute was an unconstitutional abridgment of the 1st Amendment because it criminalized “immigration advocacy and other protected speech.” Justice Barrett’s 7-2 opinion ruled that “[t]hat was error.  Properly interpreted, this provision… does not prohibi[t] a substantial amount of protected speech — let alone enough to justify throwing out the law’s plainly legitimate sweep.”

A “substantial amount” sounds a lot like a new 1st Amendment test.

Justice Jackson, joined by Justice Sotomayor, wrote in a dissent that “the majority departs from ordinary principles of statutory interpretation to reach [its] result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century. It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices…”

ACLU lawyers who supported Hansen’s appeal said they welcomed the court’s action narrowing the scope of the statute. “The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project. “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”

United States v. Hansen, Case No 22-179, 2023 U.S. LEXIS 2638 (June 23, 2023)

NBC, Supreme Court upholds law against encouraging illegal immigration (June 23, 2023)

Los Angeles Times, ‘Encouraging’ illegal immigration is not protected as free speech, Supreme Court rules (June 23, 2023)

– Thomas L. Root