« How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day? | Main | Can and should brain science research become a regular (and regulated) part of sentencing decision-making? »

November 11, 2013

Two notable SCOTUS criminal law arguments (with federal mandatory minimums at issue)

The Supreme Court Justices could have perhaps benefited from this long weekend by hanging out with my terrific first-year Criminal Law students because they return to work on Tuesday to hear two interesting cases raising classic issues relating to the basic doctrines of substantive criminal law. thanks to Congress, though, these issue arise for SCOTUS with severe mandatory minimum sentencing terms hanging in the balance.

SCOTUSblog, of course, is the place to go for a quick primer on Burrage v. United States and Rosemond v. United States, and here are the links and introduction for the argument previews now posted there:

    Law school hypos about criminal law mens rea by Rory Little

At 10:00 a.m. on Tuesday, November 12, the Court will consider a philosophical question that has troubled the criminal law for centuries: what mens rea (mental state) is required to prove “aiding and abetting” liability?   The question in Rosemond v. United States arises under 18 U.S.C. § 924(c), the federal law that provides significant mandatory minimum imprisonment terms for carrying, using, brandishing, or discharging a firearm during and in relation to a narcotics offense.  Arguing for petitioner Justus Rosemond, seeking to overturn his conviction, will be John P. Elwood, a former Assistant to the Solicitor General who is now a partner in the Washington, D.C., office of Vinson & Elkins.  Arguing for the federal government will be Assistant to the Solicitor General John F. Bash.

     Crime and death’s cause By Lyle Denniston

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the proof that federal prosecutors must offer to get an enhanced prison sentence for a drug dealer when a customer who bought heroin died.  Arguing for the convicted Iowa man in the case of Burrage v. United States will be Angela L. Campbell, of the Des Moines law firm of Dickey & Campbell.   Arguing for the federal government will be Benjamin J. Horwich, an assistant to the Solicitor General.

UPDATE: The oral argument transcript in Rosemond v. United States is available at this link; the transcript in Burrage v. United States is available at this link.

November 11, 2013 at 07:14 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Two notable SCOTUS criminal law arguments (with federal mandatory minimums at issue):


I am impressed that the appellate lawyers on both sides of Rosemond are almost as smart as Prof. Berman.

They are missing some appellate points.

1) Mens rea is Latin. That is the language of only one entity, the Church, thus violating the Establishment Clause, as the promotion of a religion.

2) It involves a supernatural power, mind reading. Even the Medieval church attributed this power to God, and never to man. Only the lawyer uses it as a factor in real verdicts, with physical world consequences.

3) In the 13th Century the only sentence seemed to be death or a harsh corporal punishment. So this loophole, the mens rea, was used to soften the criminal law.

4) It is copied from this text, Section 1857 of the Catechism analyzing the commission of mortal sin. It is elucidated here:

"1859 Mortal sin requires full knowledge and complete consent. It presupposes knowledge of the sinful character of the act, of its opposition to God's law. It also implies a consent sufficiently deliberate to be a personal choice. Feigned ignorance and hardness of heart (133) do not diminish, but rather increase, the voluntary character of a sin.

1860 Unintentional ignorance can diminish or even remove the imputability of a grave offense. But no one is deemed to be ignorant of the principles of the moral law, which are written in the conscience of every man. The promptings of feelings and passions can also diminish the voluntary and free character of the offense, as can external pressures or pathological disorders. Sin committed through malice, by deliberate choice of evil, is the gravest."

5) Section 2 (a) appears to describe a strict liability crime, "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal." No mention of knowledge, intent, etc. So the introduction of a mens rea argument is an unauthorized change in the law.

6) Strict liability crime does not violate the Establishment Clause the way the mens rea does. All crimes should become strict liability to obey the Establishment Clause. Sentencing should then be based on public safety and the prior conduct of the defendant

Posted by: Supremacy Claus | Nov 12, 2013 6:22:15 AM

Supremacy Clause points out some good things. I will point out the fact that many writers now do not italicize words that are Latin. This machine here will not allow me to do it. If I was on my word processor it would allow me to hit the ital. button and put mens rea in its proper font or ital. Over time the Italians took over Italy and so we do not say that a word gets Latinized, we say it get italed. But Professor Berman knows all this. How come mens rea does not get italed in the article? I wonder if the briefs in the Supreme Court are proper. I am gonna go look and will report back after I get off Scotusblog.

Posted by: Liberty1st | Nov 12, 2013 9:01:22 AM

Rosemond is a very tricky case. I think the facts of the case (when they were gleaned out) seem particularly bad for the defendant. Leaving aside all the procedural issues, it's quite possible that, if not harmless error, a conviction on re-trial would result. Going back into the car to get the drugs back after knowing a gun is involved strikes me as satisfying even petitioner's theory. The real tricky thing is you can facilitate some aspects of a crime without having to facilitate all aspects. You can share the same general purpose without having to care about all the details. However, since one element of a crime results in substantially more prison time, that element suddenly becomes "special." So the difficulty comes down to whether the mens rea and actus reus have to be focused on that specific element or just generally. After reading the entire transcript, I don't have any better answers than before I started.

With the other case, I think petitioner has the better argument - at least when it comes to the "but for" argument. The government's theories would either allow any bit of drugs to result in a conviction or would be an ill-defined odds-based decision that seems ill-placed in reasonable doubt analysis. Petitioner's proximate cause argument didn't go so well. She argued that it's always a jury question, which bothered me for two reasons. One, it's a criminal case, so it's always a jury question of whether there is proximate cause. However, it can still be a legal question of absence of proximate cause. After all, Palsgraf was mentioned and that was decided as a matter of law. Proximate cause isn't "we're too stupid to figure this out, let's have the jury decide it instead so we can wash our hands." It's still subject to sufficiency arguments. But I suspect petitioner will win on the factual causation argument. The argument seems clearer (Rule of Lenity and all that) and more in line with established arguments on causation.

Posted by: Erik M | Nov 12, 2013 3:38:52 PM

But for seems tricky in an era in which we have moved on the tort side away from contributory to comparative fault. There is a difference between being one of several but for causes in the link of causation and not being a cause.

In an overdose case, a user may obtain their narcotics from three or four dealers. None of them individually caused the overdose, but the four smaller doses combined to create an overdose. Only have two doses and there is no overdose and the user lives. Many states have recognized this type of but for causation. The contributing factor language is close to being straight out of the restatement on torts dealing with but for causation in multiple cause cases (e.g. the two separately set fires that converge simultaneously on a house).

Posted by: tmm | Nov 12, 2013 4:54:59 PM

Well, I think the petitioner accepted the theory of lots of causes where each is necessary could count (I could be wrong, didn't read the briefs). I think the problem here is that each isn't necessary, but each isn't independently sufficient. The analogy mentioned at one point was the three drops of poison. Only, instead of all three being necessary, only two are necessary (and the third superfluous) and we can't tell if this is drop 2 or drop 3.

Also, for what it's worth, comparative fault isn't about comparative causation. It isn't about who caused more of the damage. It's about who was more negligent. It is theoretically possible for a grossly negligent defendant who causes only slight damage and a slightly negligent defendant who causes massive damage. But if the damages aren't separable, the grossly negligent one would be more at fault. That's very different from what this is trying to do, which is unscramble the omelette and figure out what caused what. Or, alternatively, not try to figure out what caused what as long as each is a substantial factor (whatever that means).

Posted by: Erik M | Nov 12, 2013 9:55:28 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB