May the Best Canon Win: Lockhart v. United States and the Battle of Statutory Interpretation

In Lockhart v. United States, the Supreme Court resolved a long-standing circuit split regarding 18 U.S.C. § 2252(b)(2), which triggered a mandatory minimum sentence for recidivists who had previously been convicted under federal or state crimes relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” In expected fashion, the Court relied on the statute’s plain meaning to decide whether Lockhart’s previous crime had triggered the mandatory minimum. However, even with identical approaches to the text, the majority and dissent reached contrary conclusions. This commentary explores how a single approach could result in dueling interpretations, and whether judicial activism hides behind both opinions

Run-On Sentence: Remedies for Erroneous Career Offender Enhancements

Guilty pleas have come to resolve all but a fraction of federal criminal cases. So for most federal defendants, sentencing is the criminal justice process’s most important phase. That phase begins with the calculation of a recommended sentencing range based on the U.S. Sentencing Guidelines. If a defendant has previously committed two violent crimes or drug offenses, the Guidelines designate him a career offender and drastically enhance his recommended sentencing range. The range is only advisory, but judges must consult and account for the range, and it plays an unquestionably significant role in the defendant’s ultimate sentence. What if the Supreme Court later clarifies that the defendant’s crimes were not career offender predicates after all? What if the correct inputs would have yielded a shorter sentence? This Note examines remedies for mistakes like erroneously applying the career offender enhancement. It begins by exploring the federal sentencing system’s background and the available remedies for sentencing errors in general, including some remedies grounded in a due process right to be sentenced based on accurate information. It discusses sentencing and appellate-review practices since the Supreme Court made the Guidelines advisory, and observes how courts of appeals have treated those practices—erroneous career offender enhancements are generally curable on direct appeal, but recent appellate decisions have denied relief to prisoners who are subjected to the same errors but whose sentences had already become final. This discussion concludes by scrutinizing those cases and discussing them in the context of concerns for due process and fundamental fairness

Reestablishing a Knowledge Mens Rea Requirement for Armed Career Criminal Act Violent Felonies Post-Voisine

Until 2016, federal courts unanimously concluded that predicate offenses for the Armed Career Criminal Act (\u27ACCA ) required a knowledge mens rea. Therefore, any state law crimes that could be com- mitted with a reckless mens rea were not violent felonies and could not serve as ACCA predicates. In 2016, however, the U.S. Supreme Court\u27s opinion in Voisine v. United States disrupted that lower court consensus. The Court stated that a reckless mens rea was sufficient to violate 18 U.S.C. § 922(g)(9), which bars individuals convicted of misdemeanor domestic violence offenses from possessing firearms. The ACCA\u27s language is similar to § 922(g)(9), so, after Voisine, some lower courts overruled their prior ACCA precedents and held that reckless offenses could serve as ACCA predicates. Other courts, however, found that the purpose and context of § 922(g)(9) is significantly different than the ACCA, and ACCA predicate offenses still require a knowledge mens rea. This Note advocates for a congressional amendment to the ACCA that explicitly includes a knowledge mens rea requirement. A knowledge mens rea is most consistent with how the ACCA has been interpreted, adheres to original congressional intent, and ensures that repeated reckless offenders are not considered career criminals and are not subject to the ACCA\u27s harsh punishment

Who Cares How Congress Really Works?

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails. This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation. Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.). The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens

Who Cares How Congress Really Works?

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails. This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation. Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.). The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens

An Ethical Duty to Charge Batterers Appropriately

Access to a gun increases the likelihood that a batterer will kill his victim. Studies indicate that the risk of fatality increases five‐fold when a firearm is available during an incident of domestic abuse. This risk led Congress to pass the Lautenberg Amendment,18 U.S.C. § 922(g)(9), which criminalizes the possession of a firearm by any person convicted of domestic violence. When the Supreme Court recently accepted certiorari in a case involving the Lautenberg Amendment, many observers feared that a restrictive interpretation would jeopardize the efficacy of the gun ban for domestic abusers. The Court’s ruling on March 26, 2014, did not seem to weaken the Lautenberg Amendment. The reality, however, is that the Lautenberg Amendment was egregiously ineffective even before the Court’s ruling, and the “victory” in the recent case masks an enduring problem in the enforcement of the gun ban. Specifically, the charging practices of local prosecutors have minimized the opportunities to apply the federal firearms disability for convicted abusers. When local prosecutors undercharge domestic violence – by sidestepping charges that would clearly signal the defendant’s disability, or by consenting to charges that would likely result in expunction – they thwart the intent of Congress to disarm convicted batterers. Each year federal prosecutors only charge approximately fifty among hundreds of thousands of convicted domestic abusers who possess guns. This article proposes an ethical rule that would obligate all prosecutors to charge domestic violence offenses appropriately. In jurisdictions adopting the rule, the federal gun ban and other ancillary consequences intended by federal and state legislators would be more likely to attend a conviction for domestic violence. The article concludes by addressing foreseeable objections to the proposed rule