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.