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October 5, 2009

A Tuesday trio of criminal law cases for SCOTUS

As detailed in this SCOTUSblog post, the Supreme Court on Tuesday, October 6 will these hear three criminal justices cases:

The Stevens case, which concerns what I like to call "animal porn," will surely get the most media attention, but the Johnson case seems likely to have the most consequential impact on federal criminal law and punishment.

October 5, 2009 at 11:22 PM | Permalink


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Johnson shines a light on a sinister,oppressive system in which prosecutors' exaggerations framed in incendiary language cast spells capable of transforming a touch into an act of violence worthy of an extra 15 years in prison for the touchee.

No wonder the prisons are full.

Posted by: John K | Oct 6, 2009 4:58:49 PM

Make that the toucher...

Posted by: John K | Oct 6, 2009 5:00:04 PM

Johnson was a very weird argument.

In his questions, Justice Breyer seemed to not understand what the definition of "element" is. The subsection at issue in Johnson, is whether the prior crime has "as an element" the use of physical force. Breyer seems like he acknowledges that "physical force" is not required in all FL battery convictions, yet he wants to say that it still satisfies that subsection because in the typical case it will involve "physical force." Breyer, in determining whether a prior has "as an element" the use of force, seems to ask whether force will be used in the "mine run" of cases. That's just the obviously wrong approach under the plain language of subsection (1), as an “element” must be present in ALL cases, not just the typical ones.

(NOTE: Ms. Call did a good job of explaining the difference between subsection (1) (at issue in Johnson) and subsection (2). The latter also only considers the offense's elements, but then asks whether, looking at those elements, the typical case will come within the "otherwise"/residual clause). I'm not sure that Breyer ever understood the very key difference between the two ACCA subsections.)

Ginsburg didn't seem to understand the "element" concept either, suggesting the prior should count if, in fact, physical force was used, regardless of whether such was necessary for conviction.

Scalia thinks that Congress can use the phrase "physical force" in one statute and have it mean one thing, while use the exact phrase in another statute, and have it mean an entirely different thing. I'll grant you that "context" is important in legislative interpretation, but this just seems odd.

Roberts and Alito seem to think that subsection (1) "tracks the language" of common-law battery when that subsection used the term "physical force." Yet common law battery deals with "unwanted touches." Even if you equate the two concepts (as the government argues they should be equated), this is hardly a "tracking." If Congress had wanted to "track" common law battery, they would have said "unwanted touching."

Finally, although not odd, I found it noteworthy that Sotomayer seemed to agree that "physical force" requires something more than an unwanted touch, but she disagreed with the defendants because it shouldn't require the likelihood of causing injury.

Based on the argument, this could be a very interesting opinion.

Posted by: DEJ | Oct 6, 2009 6:58:58 PM

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