Competing Branches: Judicial Scrutiny and Presidential Commutation of Prison Sentences

Background

Presidential commutation, or reduction, of prison sentences is a well-established power of the executive branch. Article II of the United States Constitution gives the President the “power to grant Reprieves and Pardons” for criminal offenses against the United States. U.S. Const. art. II, §2. However, the implications of such an action on the judiciary’s subsequent ability to grant a writ of habeas corpus are yet to be determined.

A writ of habeas corpus permits an inmate to have his or her case reviewed by a court to determine whether the imprisonment is lawful. If there have been changes in law relevant to the case, or if for any number of reasons, the inmate believes the original sentence may no longer hold, he or she may ask that a court hear the claim. Relatedly, Article III of the Constitution provides an important constraint on the authority of the judiciary, declaring that courts cannot hear a moot issue. In other words, the conflict before the court has to be one that is “live,” or where the parties still have a “cognizable interest in the outcome.”

The Issue

The question, then, is what happens once a prisoner’s sentence has been reduced by presidential commutation?

1.         Does any appeal by the affected inmate for review become moot, divesting the judiciary of its power to grant writs of habeas corpus?

2.         Does the judiciary still have the authority to review that case, or has it been transformed from a judicial sentence to an executive one?

The Split

In recent years, cases before the Fourth and Sixth Circuits have raised these exact questions. The circuit courts are split, with the Fourth Circuit taking a seemingly narrow view of its jurisdictional scope, while the Sixth Circuit applies its authority more broadly.

In United States v. Surratt (2017), the Fourth Circuit held that presidential commutation — in this case, shortening a sentence for crack cocaine possession from life to 20 years — divested the court entirely of its power to review the case. Though the ruling features only a two-sentence opinion, the concurring opinion explains the logical merits. It states, “absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.” It asserts that the nature of the sentence has been transformed by the action, and that the prisoner is no longer serving a judicially imposed sentence, but a presidentially commuted one — to interfere with that would be to act outside of the court’s jurisdictional purview. In the court’s view, the inmate had accepted the offer made by the President, which created finality in the decision, thus precluding the court from further intervention.

Deviating from this opinion, in Dennis v. Terris (2019), the Sixth Circuit found that such an exercise of presidential power does not take away from the judiciary’s authority to grant a writ of habeas corpus. The court acknowledged the executive’s power, but refused to accept the position that the “altered sentence becomes an executive sentence in full, free from judicial scrutiny with respect to mistakes the courts may have made.” In this view, there is no overlap between the power exercised by the executive and the authority the court is asked to assert. Here, the question is not whether the commutation should be amended, but rather whether the original sentence itself would hold up under scrutiny and application of modern law. The argument made by this court is that a commutation or pardon by the President does not change the nature of or eliminate the original sentence. Say, for example, an inmate’s sentence is commuted with the added condition that the inmate maintain good behavior. If that condition is not met, the commutation is revoked and the original sentence takes effect once again. The original sentence remains in place all along, “ready to kick into full effect if the recipient violates the conditional cap.” Likewise, the sentence is, all along, subject to be amended by the court system that imposed it. Moreover, the court argues that a commuted sentence is, on principle, not rendered moot. Commutation does not take away any interest the inmate has in seeking relief for the remainder of his or her sentence. If a court were to find the inmate’s sentence unlawful, then the original sentence would simply go away. In other words, the conflict is still “live,” giving the court jurisdiction to revise and reevaluate the legality of its own past decisions.

Looking Forward

The power of a President to shorten or forgive the sentences of prisoners is an exercise in fairness that dates back to the creation of the U.S. Constitution, and has played a role in the criminal justice system ever since. This current split reveals a fundamental difference in how the courts view their roles as part of the judiciary. Whether or not an overlap between branches of government is formed by an executive action is a question of constitutional interpretation that carries serious consequences for how justice will be carried out across the United States in the future.

Standardizing the Standard: Determination of “Habitual Residence” Under the Hague Convention

BACKGROUND

In 1980, the United States and the member states of the Hague Conference on Private International Law unanimously adopted the Convention on the Civil Aspects of International Child Abduction. In 1988, Congress passed the Hague Convention’s enabling statute, the International Child Abduction Remedies Act. 22 U.S.C. §§ 9001–9011. In doing so, Congress reiterated the Convention’s purpose “to help resolve the problem of international abduction and retention of children” and to “deter such wrongful removals and retentions.” 22 U.S.C. § 9001(a)(4). Accordingly, Congress empowered “courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claim.” 22 U.S.C. § 9001(b)(4). As a result, the determination of a child’s “habitual residence” is the fundamental question in any case under the Hague Convention. The answer controls whether the Convention applies, which nation’s laws determine custodial or access rights, and whether a child must be sent across international borders to another country for adjudication of those rights.

THE ISSUE

Whether a district court’s determination of “habitual residence” under the Hague Convention should be reviewed:

  1. De novo, as seven circuits have held;
  2. Under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; or
  3. Under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held.

THE SPLIT

Among the ten circuits that have addressed the issue, three different standards have emerged for reviewing a district court’s habitual-residence determination.

Seven circuits apply de novo review to a district court’s determination of habitual residence, thus reviewing the district court’s underlying findings of historical fact for clear error. The Second Circuit explained that the habitual residence determination is heavily fact-dependent, but the question of whether the pertinent facts satisfy the legal standard is a question of law to be reviewed de novo. Guzzo v. Cristofano (2013). Similarly, the Third Circuit held that the “determination of habitual residence is not purely factual, but requires the application of a legal standard, which defines the concept of habitual residence, to historical and narrative facts.” Feder v. Evans-Feder (1995). Keeping in line with this approach, the Third Circuit applies “a mixed standard of review, accepting the district court’s historical or narrative facts unless they are clearly erroneous, but exercising plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts.” The Fifth Circuit agrees, explaining that such a determination presents a mixed question of law and fact subject to de novo review. Larbie v. Larbie (2012). The Seventh, Eighth, Ninth, and Eleventh Circuits also apply the same approach — reviewing the underlying historical facts for clear error, but reviewing the ultimate determination of habitual residence de novo. Koch v. Koch (7th Cir. 2006); Silverman v. Silverman (8th Cir. 2003); Mozes v. Mozes (9th Cir. 2001); Ruiz v. Tenorio (11thCir. 2004).

In contrast, the Fourth Circuit found that the crux of the habitual residence determination is whether the district court’s finding is clearly erroneous. Maxwell v. Maxwell (2009). Almost a decade later, the Sixth Circuit joined the Fourth Circuit in applying that deferential standard. The Sixth Circuit held in Taglieri v. Monasky (2018) that it would “treat the habitual residence of a child as a question of fact.” Emphasizing the comparative advantages of trial and appellate courts and the highly deferential nature of clear-error review, the court uniquely articulated that it would affirm the district court’s habitual-residence determination “unless the fact findings ‘strike us as wrong with the force of a five week-old, unrefrigerated dead fish.’” The court then deferred not only to the district court’s findings of historical fact but also to its determination that those facts were legally sufficient to establish a child’s habitual residence.

The First Circuit adopted a hybrid approach. Although it applies clear-error review to historical facts underlying the habitual-residence determination and de novo review to the district court’s resolution of that question, the First Circuit gives some deference to the district court’s determination. According to the First Circuit, it is fairly difficult in Hague Convention litigation “to attach an abstract label to a complex of discrete facts, some of which push each way.” Nicolson v. Pappalardo (2010). With this approach, the court will reverse a “district court’s raw fact findings . . . only for clear error,” giving some form of deference to the district court’s application of the standard in determining habitual residence.

LOOKING FORWARD

When Congress adopted legislation implementing the Convention, it emphasized “the need for uniform international interpretation of the Convention.” 22 U.S.C. § 9001(b)(3)(B). Ten circuits applying three approaches is not the uniformity Congress intended. Fortunately, the Supreme Court found a proper vehicle to address the lack of uniformity in Monasky v. Taglieri. Set for oral argument on December 11, 2019, the Supreme Court will shed light on which standard of review a Court of Appeals should apply to a district court’s determination of habitual residence under the Hague Convention. In deciding Monasky, the Sixth Circuit created an additional split that the Supreme Court will also examine later this year. That issue will be discussed in another Sunday Split.

Deliberate Indifference: Does the Eighth Amendment Guarantee Access to Gender Confirmation Surgery For Transgender Prisoners?

BACKGROUND

The Eighth Amendment explicitly prohibits cruel and unusual punishment, but what are the parameters of this protection? In Estelle v. Gamble, the Supreme Court expanded the definition to include “deliberate indifference to serious medical needs of prisoners.” This 1976 decision proscribes a form of inhumane treatment that extends beyond physical punishment:

“(D)enial of medical care may result in pain and suffering which no one suggests would serve any penological purpose… The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that “it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”

However, it is not the case that every prisoner’s claim for inadequate medical treatment necessarily involves an Eighth Amendment violation. Under Kolisek v. Spencer, to prevail on such a claim, a plaintiff must prove that: (1) a serious medical need exists, and (2) prison administrators’ acted with deliberate indifference to that need.

THE ISSUE

The aforementioned two-prong test comes into play when deciding whether an inmate can receive treatment for gender dysphoria. According to the World Professional Association for Transgender Health, gender dysphoria is defined as “distress that is caused by discrepancy between a person’s gender identity and that person’s sex assigned at birth.” In the recently decided case, Edmo v. Corizon, the Ninth Circuit went on to recognize that, if left untreated, gender dysphoria can lead to “debilitating distress, depression, impairment of function, substance use, self-surgery to alter one’s genitals or secondary sex characteristics, self-injurious behaviors, and even suicide.” Despite this, the question of whether gender dysphoria is a serious medical issue for inmates is not at issue here.

With regard to gender dysphoria, treatment ranges from changes in gender expression to gender confirmation surgery (GCS). The latter is politically controversial, but a growing body of evidence demonstrates that it is an effective treatment for gender dysphoria. The Fifth Circuit, in Gibson v. Collier, expressed concern that transgender prisoners are not guaranteed “the best treatment for gender dysphoria, only that which prevents their medical well-being from dropping below ‘society’s minimum standards of decency.’”

The legal controversy at issue here involves the definition of “adequate treatment,” specifically the standard for “deliberate indifference” to an inmate’s medical need in the context of transgender prisoners. The question becomes whether a transgender inmate’s Eighth Amendment right against cruel and unusual punishment is violated when GCS is denied and substituted with less invasive treatment.

THE SPLIT

The Fifth and Ninth Circuits diverge in their interpretation of the First Circuit’s opinion in Kosilek v. Spencer, which held that Michelle Kosilek, an anatomically male prisoner who identified as female, was not entitled to GCS. The Court reasoned that, although her gender dysphoria was severe, it was unclear whether GCS would provide significantly greater relief than the non-surgical treatment she was already receiving. The prison was found not deliberately indifferent, and the claim was denied.

The Fifth Circuit has interpreted Kosilek as creating a de facto, blanket ban on GCS on the grounds that there exists controversy about whether the procedure is ever medically necessary. In Gibson v. Collier, Vanessa Gibson (who the Fifth Circuit insists on calling Scott Gibson), is a male-to-female transgender inmate who has been presenting as female since the age of fifteen. Despite receiving hormonal therapy from the prison, Vanessa showed signs of depression, attempted to castrate herself, and even attempted suicide three times. The Court, however, held that withholding GCS from her is not “deliberate indifference” because there exists controversy about the efficacy of the procedure, finding that an Eighth Amendment violation did not occur. The Court granted summary judgment against Gibson for failing to provide sufficient evidence of medical indifference, and reaffirmed the prison policy that denied the inmate’s right to be evaluated as a candidate for GCS in the first place.

In contrast, in Edmo v. Corizon, the Ninth Circuit has interpreted the Kosilek decision by holding that the medical necessity of GCS must be determined on a case-by-case basis. In this case, Adree Edmo had received non-invasive treatment for her gender dysphoria as an inmate in Idaho. Despite these efforts, Edmo continued to suffer from suicidal ideations, depression, and attempts to self-castrate. Citing the district court’s lengthy discussion of the latest research on gender dysphoria and the efficacy of GCS, the Court determined that it was medically necessary for Edmo to receive the surgery. Due to the increased social awareness of transgender healthcare and significant advancement in treatment, the Ninth Circuit held: where an inmate’s health record shows medical necessity in treating gender dysphoria, and prison officials deny such treatment, those officials are in violation of the Eighth Amendment.

LOOKING FORWARD

In concluding his opinion in Gibson, Judge Ho argued that “it cannot be deliberately indifferent to deny in Texas what is controversial in every other state.” It is, however, this exact controversy that highlights the need for certiorari. It is clear that the lack of access to ever evolving and effective treatment causes severe medical harm, as was the case with Michelle, Vanessa, Adree, and several other transgender inmates. This predictable and preventable harm falls well below the “minimum standards of decency” the Eighth Amendment aims to preserve.

Joining Forces: Whether § 2 of the VRA Permits Aggregation to Create Majority-Minority Coalition Districts

BACKGROUND

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in the VRA. In 1982, Congress amended § 2 to allow a plaintiff to establish a violation of the Section if the evidence established by a “totality of the circumstance of the local election process” that the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process and to elect representatives of their choice. In effect, this empowered voters to challenge district lines drawn to either dilute or pack minority voters to decrease their influence on the political process.

In its first case following the passage of the 1982 amendments, the Supreme Court explained in Thornburg v. Gingles that the “essence of the Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”

The Court in Gingles held the following:

  • That the use of multimember districts generally will not impede the ability of minority voters to elect representatives unless: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority group votes sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate.
  • That a showing that a significant number of minority group members usually vote for the same candidates is one way of proving the requisite political cohesiveness.
  • A white bloc vote that normally will defeat the combined strength of minority support plus white “crossover” votes rises to the level of legally significant white bloc voting.
  • That the “clearly erroneous test” of Rule 52(a) of the Federal Rules of Civil Procedure is the appropriate standard of appellate review for a finding of vote dilution.

Despite these findings, the Court did not consider whether § 2 permits a claim brought by a minority group that is not sufficiently large and compact enough to constitute a majority in a single-member district.

In Growe v. Emison, Johnson v. DeGrandy, and LULAC v. Perry, the Supreme Court continued to sidestep the question by assuming, without deciding, that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.

In Bartlett v. Strickland, the Court considered the “minimum-size” question under the first requirement of Gingles. It made clear that the holding only addressed the issue as it pertains to crossover districts, not coalition districts. In crossover districts, minority voters make up less than a majority of the voting population, but the minority population, at least potentially, is large enough to elect the candidate of its choice with the help of voters who are members of the majority and who cross over to support the minority’s preferred candidate. Coalition-district claims, on the other hand, involve two minority groups that form a coalition to elect the candidate of the coalition’s choice. The Court held that crossover districts are not protected under § 2.

THE ISSUE

Pursuant to § 2 of the Voting Rights Act, is the majority-minority requirement under the first Gingles precondition satisfied when minorities from more than one racial or ethnic group, joined together, constitute a majority of the citizen voting age population?

THE SPLIT

The 5th Circuit has been most explicit in permitting coalition districts. In Campos v. City of Baytown, the court held that minority voters can be aggregated so that “together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.” Still, the plaintiffs must prove the minorities actually vote together in a cohesive manner. The court determined that the standard for proving cohesion is whether the minority group together votes in a cohesive manner for the minority candidate.

Following Campos, the 2nd Circuit, 9th Circuit, and 11th Circuit have tacitly permitted coalition districts, though not as explicitly as the 5th Circuit. In both Badillo v. City of Stockton and Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, the courts assumed it was acceptable to aggregate voters of different minority groups, but the plaintiffs in both cases failed to prove the requisite political cohesion necessary to satisfy the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, the 2nd Circuit assumed the coalition districts were covered under § 2 and that requisite political cohesion was proven to satisfy the elements of Gingles.

Deviating from the other circuits, the 6th Circuit refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity. In Nixon v. Kent County, the court held that if Congress wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form in § 2, such as “protected classes” rather than “protected class.”

LOOKING FORWARD

Recently, the Supreme Court seems more willing to take on cases dealing with issues of independent redistricting commissions and partisan gerrymandering. It also has been willing to take on cases regarding § 5 of the Voting Rights Act, as well as the application of the Gingles factors in § 2 claims. While the Court has not yet signaled a willingness to take on the issue of coalition districts, the number of cases arising from the use of African-American and Hispanic voters to create the majority-minority districts will likely continue to increase as the Hispanic population continues to grow. If the Supreme Court does not take up the issue, there may be an increase in coalition districts drawn following the 2020 Census.

Shifting Responsibility: Who Bears the Burden of Proving or Disproving Causation in ERISA Actions?

Background

The Employee Retirement Income Security Act (ERISA) imposes stringent fiduciary duties upon the trustees of employee benefit plans, essentially regulating the relationship between employer and employee. To recover losses under ERISA, a plaintiff must prove that the loss resulted from the fiduciary’s breach. In Brotherston v. Putnam Investments, LLC (2018), the plaintiffs in a class action, sued their former employer, Putnam Investments, for breach of fiduciary duties. The members of the class participated in Putnam’s defined-contribution 401(k) retirement plan. The plaintiffs alleged that Putnam “breached its fiduciary duties by blindly stocking the Plan with Putnam-affiliated investment options merely because they were proprietary,” a clear violation of ERISA. The First Circuit ruled for the plaintiffs, vacating the district court’s judgment in favor of the defendants.

The Issue

Three elements must be proven for a successful ERISA claim: breach, loss, and causation. The split among the circuits specifically revolves around the third element of causation. Once a plaintiff has established loss under ERISA, do they also bear the burden of proving causation between the breach and loss, or rather does the defendant bear the burden of disproving any causal link?

The Split

The circuit courts are split on the issue of whether the plaintiff bears the burden of proving, or the defendant bears the burden of disproving, causation once a plaintiff has established loss “in the wake of an imprudent investment decision.” In Brotherston, the First Circuit joined the Fourth, Fifth, and Eighth Circuits, by handing down a ruling that favors employees, holding that “once an ERISA plaintiff has shown a breach of fiduciary duty and loss to the plan, the burden shifts to the fiduciary to prove that such loss was not caused by its breach, that is, to prove that the resulting investment decision was objectively prudent.”

The First Circuit’s reasoning for adopting the burden-shifting approach was two-fold. First, in the past, the Supreme Court has generally allowed for many exceptions to what is called the “ordinary default rule.” This rule allows courts to presume that the burden rests on plaintiffs to prove the critical aspects of their claims. As a matter of fairness, the ordinary default rule does not apply when the presumption would ultimately force the litigant to “establish facts peculiarly within the knowledge of his adversary.” In Brotherston, the fiduciary possessed the knowledge of the retirement plan and was found to be in a better position, when compared with the beneficiaries, to bear the burden. Second, it is common practice for the Supreme Court to look to the common law of trusts for interpretive guidance in the absence of “explicit textual direction” from the ERISA statute. “The common law of trusts – like ERISA – classifies causation as an element of a claim for breach of fiduciary duty. It also places the burden of disproving causation on the fiduciary once the beneficiary has established that there is a loss associated with the fiduciary’s breach. This burden allocation has long been the rule in trust law.”

In contrast, the Sixth, Ninth, Tenth, and Eleventh Circuits’ standard favors the fiduciary. In these circuits, the burden does not shift to the defendant to prove that the investment decision was “objectively prudent.” Rather, the plaintiff bears the responsibility of proving that the defendant fiduciary’s alleged breach caused the plaintiff’s loss. Thus, unlike in circuits that adopt a more plaintiff-friendly approach, the defendant has no obligation to disprove the alleged causation. These circuits hold firm in the belief that the beneficiary bears the burden because the party alleging the loss should be responsible for proving the causation.

Moving Forward

Not surprisingly, members of the business community, such as the Investment Company Institute, the American Council of Life Insurers, and the U.S. Chamber of Commerce support Putnam Investment LLC in the case of Brotherston. These organizations have submitted petitions for writ of certiorari, urging the Supreme Court to take on the case. For more general information on fiduciary duties under ERISA, see “ERISA Compliance FAQs: Fiduciary Responsibilities.”

Reason or Result: Determining What Controls in a Plurality Opinion

BACKGROUND

A majority opinion is exactly that—an opinion that is shared by a majority of the Justices on the Supreme Court. But what happens when there is no majority? A plurality opinion results when a majority of the Justices agree on the outcome of a case, but disagree on the reasoning behind the decision. In the case of a plurality opinion, it may be difficult to determine the exact holding of the case. This becomes especially problematic in a legal system that embraces the principle of stare decisis—it is especially difficult to set a judicial precedent when it is unclear what the holding is in the first place. In Marks v. United States (1977), the Supreme Court offered some insight into deciding which opinion controls when faced with a plurality opinion:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

The opinion established the “narrowest grounds” test in order to provide guidance to lower courts as they set out to interpret the Supreme Court’s plurality opinions. The primary objective in establishing the test was to promote predictability in the law by ensuring adherence to Supreme Court precedence. Ultimately, the Marks decision may have added to the confusion rather than affording the clarity it intended, which leads us to the circuit split at issue.

THE ISSUE

The concept of “narrowest grounds” is undoubtedly vague, leaving ample room for interpretation. Because the Supreme Court left the notion undefined, it is unsurprising that the circuit courts have been unable to arrive at a consensus. Over forty years have passed since the Marks decision, and the circuit courts continue to struggle in determining what the Supreme Court meant by “narrowest grounds.” The Ninth Circuit even went so far as to acknowledge in United States v. Davis (2016) that “the Marks inquiry at times has baffled and divided the lower courts that have considered it, and that the test is more easily stated than applied.”.

THE SPLIT

In the years since Marks, two main definitions have emerged in an attempt to make sense of the “narrowest grounds” test. One interpretation focuses on the reasoning of the different opinions, and the other focuses on the ultimate outcome. Although some courts have adopted slightly more nuanced approaches, the reason-based and result-based methods appear to be leading the discussion.

The reasoning approach essentially involves examining the various opinions in a case and finding a position that a majority of Justices would seemingly support. Essentially, this method requires an observer to find a consensus in reasoning among the various opinions. The D.C. Circuit, which embraces this approach, explained in King v. Palmer (1991) that the narrowest ground under this approach “must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.”. In Pedcor Management Company Welfare Benefit Plan v. Nations Personnel of Texas, Inc. (2003), the Fifth Circuit employed a form of the reasoning approach by analyzing each of the concurring opinions and finding a common ground among just the concurrences. The holding would be the narrowest rationale supported by a combination of all the concurring opinions. Beyond the Fifth and D.C. Circuits, the Ninth Circuit recently clarified in Davis that it adopted the reasoning-based approach. It used an analogy to substantively explain how it determines the Court’s holding: The “‘narrowest grounds’ envisioned by Marks” are those in which “the plurality and concurring opinions can[] be explained by a diagram in which a circle representing the reasoning of [the controlling opinion] sits neatly within a circle representing the reasoning of the plurality opinion.”

In comparison, the outcome approach focuses instead on the end result, as opposed to the reasoning. This method typically involves selecting a concurrence to serve as the controlling opinion because, although the reasoning may differ, a concurring Justice concurs in judgment, and thus agrees with the overall result. In other words, as the Third Circuit explained in Planned Parenthood of Southeast Pennsylvania v. Casey (1991), the narrowest ground under this approach “would necessarily produce results with which a majority of the Justices from the controlling case would agree.” The Seventh Circuit implicitly joined the Third Circuit in adopting the results-based approach, as it noted several times in Ben’s Bar, Inc. v. Village of Somerset (2003) that the “controlling opinion” is the “concurrence . . . as the most narrow opinion joining four other Justices in the judgment of the Court.”

LOOKING FORWARD

Although plurality opinions are far outnumbered by majority opinions—the Court publishes on average about three plurality opinions per term—they are still important to understand. Plurality opinions do not always provide clear guidance to lower courts and are viewed as less binding than majority opinions—but they also provide unique insight into the Supreme Court and its decision-making process. The confusion over how to determine the opinion decided on the “narrowest grounds” illustrates, perhaps clearer than any other circuit split, the need for the Supreme Court to step in and clarify its jurisprudence. Circuits disagreeing over the technical aspects of statutory interpretation or how to apply an unclear majority opinion in different circumstances are inevitable—but at a core level, circuits should know which opinion is binding on them, and to what extent.

Supervised Splits: Vagueness and Constitutionality in the Conditions of Federal Supervised Release

BACKGROUND

Supervised release and parole are similar tools in the federal criminal justice system, and serve similar purposes. Released prisoners living under the conditions of both supervised release and parole are in the custody of their assigned parole officer and must also follow court-imposed conditions and guidelines to remain out of prison—like the conditions suggested in the Federal Sentencing Guidelines.

            Take, for example, Soulemane Barry, who used fake credit, debit, and gift card to make purchases for approximately two hours. He was convicted of attempting to use “counterfeit access devices” in violation of 18 U.S.C. § 1029. As part of his sentence, he was given two years of supervised release, with many commonly applied supervised release conditions. Specifically, Barry was prohibited from “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered.”

            Barry challenged the District Court’s imposition of this condition, arguing that it was unconstitutionally vague. In short, Barry argued that the condition “neither specifies how many trips result in ‘frequent[ing]’ sites of drug activity, nor does it clarify whether Barry must knowingly be in such a place to violate it.” Ultimately, in December 2018, the Third Circuit rejected Barry’s argument in United States v. Barry. The Third Circuit’s decision means that another federal appellate court has taken a position in a burgeoning circuit split.

THE ISSUE

Is a supervised release condition that prohibits “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered” unconstitutionally vague?

THE SPLIT

The Third Circuit did not create the circuit split on this issue—prior to its decision, the Seventh, Ninth, and Tenth Circuits had all taken a position. The Ninth and Tenth Circuits, in United States v. Phillips (2012) and United States v. Llantada (2016), respectively, held that the condition in question isn’t unconstitutionally vague. In Phillips, the Ninth Circuit focused on a “common sense reading,” drawing on the dictionary definition of “frequent.” It analogized the term “frequent” to “associate,” which it had previously held that “‘men of common intelligence’ could understand.” The court concluded that “a reasonable person would understand the prohibition on ‘frequent[ing] places’ where illegal drugs are used or sold prohibits [a defendant] from knowingly going to a specific place where drugs are illegally used or sold, but that it does not prohibit him from living in Seattle or going to a given neighborhood simply because a person is selling drugs somewhere within that neighborhood.”

In Llantada, the Tenth Circuit’s reasoning echoed the Ninth’s, but rejected the appellant’s argument much more cursorily. The court there noted that it “reject[s] this type of literal reading of the condition,” and observed, “The probation officer, and any judges tasked with deciding whether Llantada violated the condition, must interpret the condition in a reasonable, commonsense manner. We have little doubt that the condition allows for reasonable interpretation and enforcement.”

The Seventh Circuit, on the other hand, struck down several supervised release conditions in United States v. Thompson (2015) among them, the prohibition on “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered.” In Thompson, the court criticized this prohibition as providing no “indication of how many trips constitute ‘frequent[ing]’ such places.” The Seventh Circuit rejected the Ninth’s approach in Phillips, arguing that the limitations of supervised release should be clearly established in the condition itself, because “otherwise the defendant may think himself bound by the broader interpretation.” The court summarized its concern with a snappy example: “If you’re 90 percent certain that purchasing girl scout cookies from someone who rings your doorbell wouldn’t violate a condition of supervised release, do you want to risk going back to prison because you may have guessed wrong? If out of caution therefore you decline to purchase the cookies, the sentencing guideline would deter lawful conduct, and thus be overbroad.”

            In arriving at its opinion that the District Court didn’t err in imposing this condition, the Third Circuit took a relatively neutral position in Barry—it upheld the condition but cautioned the District Court against its imposition. The court noted the posture of the case and the legal standard required—“any mistake by the District Court in imposing this condition is not plain error”—as its main justification for upholding the condition. But the court urged the District Court to reconsider in its conclusion: “We recognize, however, given the split of authority . . . Barry’s concerns regarding these conditions are not unwarranted. We therefore encourage the District Court . . . to impose the updated condition recommended by the Sentencing Guidelines in place of the controlled-substance and association conditions.”

CONCLUSION

            Suppose that a man is released from prison on a term of supervised release. Deprived of his ability to enjoy his favorite food, he’s excited to return to his favorite hole-in-the-wall restaurant. But the restaurant happens to be in an area known for high drug use. Would visiting the restaurant violate the terms of his supervised release, if it contains the aforementioned condition? What factors would be relevant in answering this question: Must people inside or immediately outside the restaurant be using drugs? Is it a problem if people just near the restaurant are?

            The different circuits’ answers to this question illustrates the key problem with different interpretations of the same release conditions. The activities of different parolees or supervised releasees in different places may be chilled, depending on how their circuit answers this question. A ruling by the Supreme Court on this narrow, technical question—or a broader ruling that more generally addresses constitutional vagueness in release conditions—would provide a resolution not only to this specific question, but would also make supervised release and parole more transparent. Courts and parole officers would be able to more effectively implement these programs, and releasees and parolees would be able to more effectively abide by them.

The Kingsley Conundrum: Does the Fourteenth Amendment Protect the Rights of Pretrial Detaineers More than the Eighth Amendment Protects Prisoners?

BACKGROUND

Both prisoners and pretrial detainees may bring claims for violation of their constitutional rights under 42 U.S.C § 1983. The Eighth Amendment protects prisoners from “cruel and unusual punishments.” For claims of Eighth Amendment violations, prisoners must show that the actions of prison officials were objectively unreasonable under the circumstances. These claims also require a subjective component—courts inquire into the officials’ “state of mind” to determine whether they acted “maliciously and sadistically” to violate the prisoner’s rights. The prison officials must have demonstrated a “subjective awareness of the risk of harm.”

The rights of pretrial detainees, however, have both a different constitutional basis and different implications. Their rights are protected under the Fourteenth Amendment’s Due Process Clause and because they have not been convicted, they are entitled to a constitutional presumption of innocence. Accordingly, under Bell v. Wolfish (1979), they cannot be punished at all and may prevail on claims of rights violations by showing that the defendants’ actions were not “rationally related to a legitimate government purpose.”

But the differences between prisoners and pretrial detainees don’t end there. Though plaintiffs under both the Eighth Amendment and the Fourteenth Amendment must show that prison officials acted with “deliberate indifference,” the standard of what constitutes “deliberate indifference” under the Fourteenth Amendment is murky at best. In Kingsley v. Hendrickson (2015), the Supreme Court held that pretrial detainees only need to show that an officer’s use of force was objectively unreasonable in excessive force claims. This contrasts with similar claims by prisoners, where they must show that the officer’s actions were subjectively unreasonable. In other words, pretrial detainees need not demonstrate that officers acted “maliciously and sadistically to cause harm,” or even be subjectively aware that their use of force was excessive.

But Kingsley left open several questions that the Court declined to answer. The Court did not note whether its holding extends beyond excessive force claims, for example, to claims involving improper conditions of confinement or inadequate medical care.

THE ISSUE

Did Kingsley alter the standard for all claims by pretrial detainees or just claims involving excessive force? Do any claims by pretrial detainees require a subjective consideration of the defendant’s state of mind?

THE SPLIT

Circuits are split on whether to apply the Kingsley Standard to claims regarding conditions of confinement and inadequate medical care brought by pretrial detainees. The Second, Seventh, and Ninth Circuits have interpreted Kingsley as altering the standard for such claims, while the Fifth, Eighth, and Eleventh Circuits have held that the standard is unchanged.

The Ninth Circuit in Castro v. Los Angeles County (2015) categorically stated that the Kingsley holding applies broadly and extends beyond excessive force claims to protect other rights of pretrial detainees. Specifically, the Ninth Circuit held that Kingsley also applies to conditions of confinement claims. The court reasoned that the Supreme Court in Kingsley “did not limit its holding to ‘force’ but ‘spoke to the challenged government action’ generally.”

Likewise, the Second Circuit in Darnell v. Pinero (2017) held that Kingsley no longer requires a subjective component for conditions of confinement claims by pretrial detainees. The Court reasoned that “the Due Process clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.” Therefore, according to the Second Circuit, pretrial detainees must only show that the defendants’ actions were objectively unreasonable under the circumstances.

The Seventh Circuit recently joined the Second and Ninth Circuits in Miranda v. Lake County (2018), and held that the “punishment model” of the Eighth Amendment is inappropriate for pretrial detainees. Therefore, demonstration of the defendant’s “punitive intent” in denying necessary medical care is not required under Fourteenth Amendment Due Process claims for pretrial detainees.  The Court held that “[m]edical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject only to the objective reasonableness inquiry identified in Kingsley.”

          In contrast, the Fifth, Eighth, and Eleventh Circuits have held that Kingsley only applies narrowly to excessive force claims and does not extend to claims related to conditions of confinement or inadequate medical care.

In Anderson v. Concordia Parrish Correctional Facility (2017), the Fifth Circuit stated that in a claim for inadequate security and impermissibly delayed medical care, “a pretrial detainee must show subjective deliberate indifference to by defendants.”  Perhaps illustrating its view that Kingsley is inapplicable, the majority in Anderson did not even discuss Kingsley in its opinion.

Similarly, the Eleventh Circuit decided not to apply the Kingsley Standard to a claim of deliberate indifference to a pretrial detainee’s medical needs in Dang ex rel. Dang v. Seminole County Sheriff (2017). Despite Kingsley, the Eleventh Circuit in Dang evaluated the plaintiff’s claims “under the same standard as a prisoner’s claim of inadequate care under the Eighth Amendment.” The Eleventh Circuit here interpreted Kingsley as only applying to claims of excessive force by pretrial detainees.

Finally, the Eighth Circuit joined the debate and sided with the Fifth and Eleventh Circuits in Whitney v. St. Louis (2018), where it held that although pretrial detainees have a “clearly established constitutional right…to have [their] serious medical needs attended to,” the establishment of deliberate indifference to medical needs still “requires both an objective and a subjective analysis.” 

LOOKING FORWARD

          Until the circuit split is resolved, the standard required for claims of inadequate medical care or conditions of confinement by pretrial detainees will be vary by jurisdiction. One example where this has an impact is on claims for inadequate psychiatric care brought by the estates of prisoners who commit suicide in pretrial detention. Regarding conditions of confinement, an example would be a failure to protect claim when a pretrial detainee is harmed by another inmate.  To ensure that the rights of pretrial detainees under the Fourteenth Amendment Due Process Clause are addressed consistently, the Supreme Court will need address whether Kingsley applies broadly or whether its application is limited to excessive force claims.

It’s Alive! (Or Is It?): Does Remmer’s Presumption of Prejudice for Jury Communication Still Apply?

BACKGROUND

In 1954, the Supreme Court held in Remmer v. United States that any unauthorized, private communication with a juror during a trial about any matter pending before the jury is presumptively prejudicial—and that the burden to prove that the contact was harmless to the defendant rests with the government. Remmer featured relatively straightforward facts: An unnamed person communicated with a juror about a profit that juror could make by bringing a verdict for the defendant. The juror reported the incident to the judge, who informed the prosecuting attorneys. The F.B.I. investigated the comment, but determined the statement was made in jest. The attorneys for the defendant were never notified by the judge or prosecutors, but instead found out about the comment and F.B.I. investigation from a newspaper article after the verdict. The Supreme Court held that “any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about matter pending before the jury is . . . deemed presumptively prejudicial” if not authorized by the rules or instructions of the court, and required the government to prove that the communication was not harmful to the defendant. The case was remanded to the district court to hold a hearing to determine whether the incident was harmful to the petitioner.

While Remmer was long the standard regarding extrajudicial contact with jurors, the Court began to refine and narrow that standard. In Smith v. Phillips, a juror applied for a job in the prosecutor’s office during the trial. The Court held that due process required the trial court to hold a hearing where “the defendant has the opportunity to prove actual bias.” Phillips signaled a shift of burden to the defendant, rather than the government in Remmer. In O’Connor’s concurrence, she stated her concern that a hearing may be inadequate for uncovering a juror’s biases.

Later, in United States v. Olano, alternate jurors were present during jury deliberations. The Court’s opinion, written by O’Connor and grounded in similar logic to her concurrence in Phillips, held there “may be cases where intrusion should be presumed prejudicial, but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the instruction affect the jury’s deliberations and thereby its verdict?” The Court held the error of allowing alternate jurors to be present during jury deliberations did not “affect substantial rights” of the defendant.

ISSUE

Does the Remmer rebuttable presumption, which requires the government to rebut the presumption that extrajudicial contact with a juror about the matter pending before the jury is prejudicial, remain intact?

THE SPLIT

Since the Court’s decisions in Phillips and Olano, the circuit courts have answered differently the question of whether Remmer should be followed in whole, in part, or not at all. The splits revolve around two points of contention.

  1. Should Phillips be read broadly to apply the shift in burden to the defendant in all cases?
  2. Should the language of Olano be interpreted to imply a continuation of the rebuttable presumption standard or require a new standard of specific analysis of the intrusion’s effect on the verdict?

The Second, Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits still follow Remmer’s standard of rebuttable presumption. These circuits have consistently held—as summarized in United States v. Greer, a Second Circuit case—that it “is well-settled that any extra-record information of which a juror becomes aware is presumed prejudicial” and that “[a] government showing that the information is harmless will overcome this presumption.”

The circuits have also attempted to narrow the applicability of the Court’s holding in Phillips by holding that Remmer still has broad applicability. The Fourth Circuit, in Stockton v. Virginia, held Phillips did not overturn the holding in Remmer and the presumption of prejudice is applicable in cases in which “the danger is not one of juror impairment or predisposition, but rather the effect of the extraneous communication upon the deliberative process of the jury.” The Seventh Circuit, in Hall v. Zenk, stated that the focus of Phillips is not about the shift in burden from the government to the defendant during a Remmer hearing, but rather about the defendant’s mere right to a hearing.

On the other hand, the First, Third, Fifth, Sixth, Eighth, and D.C. Circuits have deviated from the Remmer standard to varying degrees.

The Sixth and Eighth Circuits have focused on the shifting of the burden in Phillips from government to defendant. Both circuits have applied Phillips broadly, eliminating the presumption of prejudice and placing the burden on the defendant to demonstrate the communication affected their substantial rights.

The First, Third, Fifth, and D.C. Circuits have interpreted the language in Olano and O’Connor’s concurrence in Phillips to require specific analysis on the intrusion’s effect on the verdict. These circuits have held that the district court must evaluate the severity and likelihood of the communication resulting in prejudice before holding a Remmer hearing. The government is required to prove prejudice does not exist only when the court determines prejudice is likely. The Third Circuit cited O’Connor’s concurrence and held that “a finding of implied bias is reserved for those extreme situations and exceptional circumstances that leave ‘serious question whether the trial court subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice.’”

LOOKING FORWARD

Going forward, the Court may choose to address the two questions about which side carries the burden and whether there must be an analysis of the severity and likelihood of prejudice before a Remmer hearing. There are two types of cases that appear to be the most likely to result in the Court addressing the questions. The first type of case would be one where, using Phillips as precedent, the defendant has the burden to prove prejudice and is not able to meet the burden, but the government is unable to prove its burden either. (While this seems perhaps paradoxical and a solely academic question, this kind of result is possible because the burden for each side is so high; a situation could develop, therefore, where the issue of prejudice is a close call, and neither side can meet its heavy burden.) This scenario could mean that a motion for new trial could be decided by which party has the burden.

The second kind of case would be one in which a Remmer hearing is denied because the courts do not deem the severity and likelihood of prejudice to be high enough. This type of case may be less likely than the former, as it does mirror Phillips in many ways.

Ultimately, the possibility of these undesirable outcomes, coupled with the stark differences between the Circuits (and the relatively even divide between them), heightens the need for the Supreme Court to step in and clear the fog.

Violence By Any Other Name: Interpreting “Crimes of Violence” under 18 U.S.C. § 16(a)

BACKGROUND

18 U.S.C. § 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In Leocal v. Ashcroft (2004), the Supreme Court held that the section requires courts “to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Essentially, in applying § 16(a), courts must presume that a conviction rests upon nothing more than the least of the acts criminalized and then determine whether that conviction matches up with the federal offense.

The Supreme Court reinforced its holding in Johnson v. United States (2010), where it found a provision of the Armed Career Criminal Act (ACCA) similar to § 16(a). The Court observed that the word “force” might evoke the common-law crime of battery, where “the intentional application of unlawful force against the person of another” could “be satisfied by even the slightest offensive touching.” Thus, it rejected the ACCA’s interpretation and maintained its interpretation of “use of physical force” in Leocal.

However, in Castleman v. United States (2014), the Court adopted a different meaning of the phrase “use of physical force” in their interpretation of the Domestic Violence Gun Offender Ban. The Court departed from the interpretation adopted in Johnson and Leocal and held that under § 921(a)(33)(A) a prior conviction has the “use of physical force” as an element even if it can be satisfied by “the slightest offensive touching,” thus adopting for § 921(a)(33)(A) the common-law meaning of “force.” At the same time, the Court emphasized that nothing in its decision casted doubt on Leocal’s and Johnson’s holding that a “crime of violence” requires “violent force” and not mere common-law force. However, the Court expressly reserved the issue of whether or not the causation of bodily injury necessarily entails violent force as required by § 16(a).

THE ISSUE

Does an offense qualify as a crime of violence within the meaning of § 16(a) if a state statute criminalizes only the causation or threat of bodily harm—without a distinct element requiring the use or threatened use of physical force? Or does § 16(a) apply only if the statute also requires the use, attempted use, or threatened use of physical force?

THE SPLIT

The First, Second, and Fifth Circuits hold that § 16(a) does not apply to convictions under statutes that do not include physical force as an element of the crime, reasoning that bodily injury can be inflicted without physical force—such as by trickery or poisoning. However, the Eighth, Seventh, and Ninth Circuits hold that § 16(a) covers such offenses considering that any bodily injury at least involves indirect physical force.

In Chrzanoski v. Ashcroft (2003), the Second Circuit explained that “use of force must be an element of that offense for that offense to be a crime of violence under § 16(a).” Therefore, where nothing in the language of the state statute requires the government to prove that force was used in causing the injury, the force element required by § 16(a) is absent. Accordingly, the Second Circuit rejected the Government’s argument “that force is implicit in the statute,” because “such an argument equates the use of physical force with harm or injury.” In United States v. Villegas-Hernandez (2006), the Fifth Circuit followed the Second Circuit’s reasoning, explaining that “Chrzanoski’s analysis is fully applicable” to a Texas domestic assault statute criminalizing the causation of “bodily injury to another.” The court held that the force element required by § 16(a) was absent because “‘bodily injury’ … could result from any number of acts” that would not require “the government … to show the defendant used physical force.” The First Circuit reached the same conclusion in Whyte v. Lynch (2015) by explaining that where the statute “identifies only two elements”—intent to cause physical injury and causing such injury—the crime does not contain as a necessary element “the use, attempted use, or threatened use” of violent force.

On the other hand, the Seventh, Eighth, and Ninth Circuits hold that § 16(a) applies to “bodily harm” offenses even if the relevant state statute does not include physical force as an element of the crime. In De Leon Castellanos v. Holder (2011), the Seventh Circuit held that under § 16(a), and under Illinois law, a misdemeanor conviction for “intentionally causing bodily harm to any family or household member” constitutes a “crime of violence.” The Ninth Circuit similarly held that offenses covering threats of injury—regardless of how that injury is caused—constitutes crimes of violence under § 16(a). In Arellano Hernandez v. Lynch (2016), the court found that a California conviction for a mere attempt to “threaten to commit a crime which will result in death or great bodily injury” involves “the use, attempted use, or threatened use of force” meant by § 16(a). Finally, the Eighth Circuit joined the Seventh and Ninth Circuits in United States v. Schaffer (2016) holding that state statutes criminalizing the causation, or threatened causation, of bodily injury necessarily includes the force requirement of § 16(a) under ACCA’s force prong—which mirrors that in § 16(a). In the Eighth Circuit’s view, causing bodily harm or fear of imminent bodily harm by means such as exposing someone to a deadly virus or by employing poison are indirect applications of physical force. Thus, a statutory element requiring actual or threatened bodily injury is necessarily equivalent to “an element requiring the use, attempted use, or threatened use of physical force.”

LOOKING FORWARD

This circuit split is a significant because § 16(a) operates in numerous contexts and there are dozens of state crimes across the country that require only “bodily harm,” “physical harm,” or “physical injury,” without an additional “physical force” requirement. All of these statutes implicate the circuit split because inconsistent results will continue to occur unless the Supreme Court clarifies the issue. Right now, the government can engage in forum-shopping in a circuit with precedent favorable to the government. Furthermore, section 16(a) supplies the general definition for a “crime of violence” for the entire Criminal Code. As such, it operates in the context of more than a dozen criminal provisions, several of which impose severe, mandatory sentences for those deemed to have prior convictions for “crimes of violence,” regardless of the sentence imposed for the original offense.