LIVE: Supreme Court Hears Arguments on ‘Serious Drug Offense’ Definition in Anti-Criminal Act 2023-11-27 16:16

that the background rule is that we always look to the contemporaneous reference law as the court discussed in Jam the reference Canon actually supplies the background rule here and the reference Cannon has temp different temporal branches depending on context the reason the reference Cannon is structured that way is because cross references May refer to pass law they may ref and in fact in h we have such a thing we don't here we just has we have as defined in not as was once defined or as at the time of State conviction or as had been lots of Alternatives I can come up with to accomplish exactly what you want and in fact appear elsewhere in the statute but not here I agree all of those formulations with answer the question dispositively and argue there's three aspects of the text that dictate a backward-looking inquiry there's the term previous convictions there's the term involving which we think refers to historical attributes of an offense and third there is sub Clause one which unambiguously requires a backward looking inquiry for sure we ask a backward looking inquiry when we're saying do you have these things um these prior convictions but when we're asking what is a controlled sub what is a serious drug offense that's defined that's the section that we're now dealing with so what do we what do we do with that it it's true that subclause one is separate from this but previous convictions is an umbrella term that informs the meaning of everything that follows involving is actually in the Clause that's at issue here involving is followed by a list of attributes of the prior State offense and as defined in the federal schedules is part of that list I think both of those textual pieces still apply in this case and just shifting gears um your colleagues on the other side raised an expost facto concern what what is the government's analysis of that is there an exp postao concern if not why not we agree that there's an ex postao problem with Mr Brown's interpretation because any time a drug is added to the schedules after the federal offense conduct no no I'm I'm saying with respect to your interpretation if we had to accept the state offense time there are going to be some drugs that will be added later correct inevitably that's just the way the world works these days and your colleagues on the other side say well that poses a serious X post facto concern with your interpretation and um we're going to inevitably invite a number of exp poost facto challenges and I'm sure the government's given that thought and I just want to know what you think the merits of that argument might be we do not think there is any Merit to that argument and I actually don't understand them to be arguing that our position would create an expost Factor violation because let's suppose I understand that to be their argument then what then I I still disagree that there would be such a problem because we agree that the AA in effect at the time of the federal offense conduct governs up until that point the defendant can choose to possess a firearm or not to POS possess a firearm so there's nothing retroactively being imposed on prior conduct the prior convictions here are used to help ascertain the seriousness of the offense how dangerous this defendant is but ultimately he's still being punished for the gun possession um which is the 922 violation again but the serious drug offense changes on your view uh it's we set it at this time of State conviction but the schedules are dynamic as you point out and and it's going to lead some individuals to be punished under under your reading uh who would not otherwise be punished and I guess I'm just trying to understand again do you think that's an next post factum problem if not why not I think the only way that there would be an Expos facto problem is if they were being punished for additions to the schedules after their 9 922g offens that's what I'm asking and that's not the case under our interpretation under our interpretation you look to the schedules in effect at their time of their prior State offense it's locked in at the earliest possible time of all the three it's only it's only Brown's interpretation that would create an expost facto problem nether neither Jackson's nor yours would create any expose facto issues as I understood it is that your understanding that is also my understanding Mr rner I'd like you to address the difficulty uh you know the lack of access to the prior drug schedules because I think that might be a problem with your approach from an administrability point of view yes so Justice Barrett if we're talking about um defendants I think they paint this sort of artificial portrait that defendants at the time of their state convictions will be totally unaware of the federal schedule I think that ignores an important part of how the statute works the statute picks up federal convictions in analogous State convictions so State convictions involving federally prohibited conduct like manufacturing Distributing or possessing with intent to do those things a federally controlled substance if you're a defendant who has trafficked in a federally controlled substance you're going to be very interested in your federal exposure at the time even if you're being prosecuted by state authorities in fact I think it would be more difficult for defendants who can't predict if the ual are going to change later and not know whether their offense would be a predicate I I understand that I'm just saying at the time of sentencing for everyone for the prosecutor for the district judge for the defendant who after the ACT offense is committed has to figure out does this predicate count how do you find the schedules you know so I think part of it is you rely on the attorneys like you know the relevant scheduling changes are well known to both sides of the bar in Florida it's I flu and him I think they're overstating the degree to which this will be a practical problem but to the extent you were worried about it our position doesn't create any greater practical problems than McNeil already requires McNeil is going to require you to go back and look at the state code in effect at the time well the state code might be easier to find I mean how often do the drug schedules change at the federal level just Spar I'm not sure that it will be easier to find because you won't just be able to look at the conviction documents right to conduct the categorical inquiry you're often going to have to pull Old State drug schedules which is going to be much harder to find than old federal drug schedules you're also going to have to pull old versions of the state code to determine what the maximum applicable punishment was because the punishment to which you were sentenced might not answer the question are the old Federal drugs schedule is hard to find it depends on what type of what what you're looking for so here if we're talking about cocaine cocaine has been scheduled since the beginning if you look at the prior the modern definition of cocaine there's an exemption for iof flu pain you can discover that iof flu pain was descheduled in 2015 via a Google search the argument presented is difficult assuming I accept that there's a burden I know you're saying there's not and the chief suggested there might not be I accept it because I think every prosecution probation officer and defense counsil in these various amikas tell us there's a problem who Bears the burden of proving this at sentence I know that defense Council says we have to figure it out because we have to advise our client um but at the end they're just defending against a charge doesn't the prosecutor bear the burden of proving it correct it's a and if there's any doubt you don't are you conceding on behalf of the government that if there's a doubt it's in favor of the defendant and the enhancement should not be given I don't concede that if there is any doubt the the defense automatically wins this why in our view this is um a sentencing factor that can be found by the judge by a preponderance of the evidence that question is not presented here I don't want to get out a legal question no justice I'm not suggesting that all I was taking issue with was your suggestion that any doubt is enough to get the defendant off the hook I agree the government is going to have to bear the burden on this and prove it so how would you want me to phrase that it seems to me that if it's as difficult as being suggested if there is doubt quantify how much doubt is enough to favor the defendant Justice SAR as I said the sixth amendment question is coming before the court soon I don't to get out ahead of our briefing on that I do think under alrez Torres this could be found along with the fact of the prior conviction but I agree with you that this is something that the government must carry its burden on and to get back to the burden question by a preponderance of the evidence on a legal question no justce I think it's likely that it's beyond A Reasonable Doubt but I'm not prepared to take a position on that today can I just direct your attention to the kind of overall theory of this because I I'm as usual struggling with that um do you see that a change in the drug schedules reflects a change in what is considered to be a serious drug offense in other words to to to to take a drug off the schedule Congress has made a determination that that's no longer a control substance it's not going to be something that we consider to be a crime Justice Jackson I certainly agree that going forward that means someone can't be punished for that and a state conviction going forward also would not be treated so my question I guess is why would Congress want to incapacitate defendants who have committed crimes that federal law no longer regards as serious I mean I thought the point of this was we're doing AA because we think Congress says that certain people need to be taken off the streets for a long periods of time and in order to identify those people we look at their histories and determine whether they have committed certain kinds of crimes if we today as we undertake sentencing have an understanding that these certain kinds of Prior crimes are no longer considered serious because the change the the schedules have changed I guess I'm trying to understand why the government's position is that they should still be ACA predicat right the reason Justice Jackson is because we think in terms of assessing the seriousness of the prior offense it makes sense to look at the legal landscape at the time the offense occurred why we're doing the sentencing today and we're trying to determine whether this person today needs to be put in jail for 15 more years so why does the seriousness or the label or the perception of the past as to what he did mattered why wouldn't the criteria for determining that be what we think about his prior crimes today it's it's relevant to his willingness to disregard the law so to take Jackson as an example he trafficked cocaine in 1998 and 2004 that was considered a very serious crime at the time the fact that there was later a medical use discovered for a derivative of cocaine yes no I understand how it turns into a technicality in a particulars of this case but what I'm saying is AKA is not about punishing the person for the past offense he's already you know been held responsible culpable sentenced for the past offense I thought it was about incapacitating people who we can identify as particularly dangerous based on the nature of their p past offenses so it's not really about his willingness to to commit a crime I mean he has these criminal offenses Congress would have just said do you have an offense instead they say do you have a serious drug offense and what I am struggling with and trying to get Beyond is why we are evaluating the seriousness of that offense based on past standards as opposed to the standards that would appli today as we're making this 15-year determination Justice Jackson I think another way to come at this is this is unambiguously what subclause one does it cares about the seriousness of the offense at the time it cares about whether you had a federal conviction I'm not so sure about that I mean it doesn't it it too doesn't necessarily I'm trying to find the statute um you know it says an offense it doesn't say a conviction under the control Substances Act and I appreciate that the previous thing says you have to have three previous convictions right but for a serious drug offense and then it says an offense under the control substance act I mean one could interpret that also with respect to Modern standards because the exercise is trying to identify what is a serious drug offense and if today we would say this is not an offense under this the Controlled Substances Act I suppose we could interpret the federal statute differently than what you're you're you're articulating right I don't think so Justice Jackson I think the text says do you have a previous conviction for an offense under the Controlled Substances Act if you have a conviction for an offense under the Controlled Substances Act that's just the why be today's control substance that's what I'm asking you it would be it wouldn't be an offense for the control Substances Act as it exists today no but it it would be literally a conviction under the Controlled Substances Act and to be clear it I am not aware of any Court entertaining this argument before much l not an issue in this case right we're doing the other thing we're doing Mr re I'm sorry go ahead go ahead no you you were first go ahead Justice Kagan Justice Kagan can I can I take you back to the conversation that you started having with Justice Thomas if I understand your responses to those questions uh you agree with Mr Adler that if AA were amended so that burglary was not a predicate you would go with the new version is that right the aversion in effect at the time of the offense conduct correct correct and uh Sam If instead of this language you had a list of five controlled substances and those five Controlled Substances were amended again the same result would follow correct yes so so your whole argument rests on um treating differently a list of five substances or any other attribute of AA treating it differently from a controlled substance is defined in Section 102 and that seems a little bit mysterious to me I mean if you ask why it is that Congress put in this language a control substance is defined in Section 102 it's well number one there are lot of controlled substances and you don't want to have to list all however many there are and number two we expect them to change so what's going to be a controlled substance next year is not necessarily the same as this year and so on both of those theories of why Congress used this language it seems perplexing as to why you would have a different rule than you would if Congress had just listed the substances right Justice Kagan I think one way to think about this is if it had listed the substances that would reflect a static concern with particular substances but by referencing an external body of law Congress evinced its concern with the drugs status under federal law and for the reasons I was discussing with Justice Jackson it makes a lot more sense to look at the drugs status under federal law at the time of the prior conviction I mean I would think quite the opposite that what Congress is saying when it does when it uses this kind of language is we know this is going to be in flux so keep on updating you know and and that's that's an argument in Mr Adler's favor not in yours right so Justus K another way to come at this is that we think the cross reference as I mentioned to Justice Gorsuch it raises the temporal question when Congress puts in a cross reference we know from the reference Canon there's multiple points in time it could be referencing there's no background rule that it's always referencing current law so in our view the cross reference it only raises the question it doesn't answer the question we think what answers the temporal question is subclause one the term previous convictions the term involving and mcneel and this Court's precedent it's that text in context that in our view answers the question in favor of the prior State conviction can I ask about um following up on Justice Jackson's questions how to think about this statute because I think about it not as a purely recidivist statute for iist drug offenses but but as a gun statute once you have the three prior offenses for serious drug offenses or violent felonies you know don't possess a firearm in fact if you have one you know don't possess a firearm once you have three don't possess a firearm or you're getting a mandatory minimum because Congress was concerned about guns with drugs not about drugs alone statute about guns with drugs and that's why you look uh that's what Congress was concerned about yes Justice K I think that's an important response so without me it's not just the drugs it's the gun right exactly and I think that's an important response to their to their notice argument as you mentioned earlier in your questioning of my friend as soon as the defendant receives that third conviction he's going to know he cannot possess a gun going forward that's not a inquiry for him undertake 10 years later when he decides to now the response to that so I want you to respond to what uh Council said was not really they don't really pay attention to that they're not advised of that so you respond to that yes I I think there's two responses to that the first is what I just said to you it inhibits their behavior going forward because they know one minute after that third conviction if they possess a gun they're subject to the ACT enhancement and the other response I think is what I mentioned to Justice Barrett earlier which is this statute picks up federal convictions and analogous State convictions and if you trafficked in a federal controlled substance you're going to be highly aware at the time of what your federal exposure is even if you end up being prosecuted under state law so that's the second reason the defendants will care at the time all of that being said we think even if this is something that they research later the burden still have to do that research before possessing a firearm we don't think there's a problem even then but we think the other side overstates the degree to which the defendant will be ignorant of federal schedules at the time of the state conviction Council you um in response to Justice Kagan uh talking about the reference Cannon uh noted that sometimes it can refer to a past law rather than the present law but do you agree with the court in Jam that a general reference to an external body of law takes that body of law as it evolves over time Justice Gorsuch I agree with that in so far as it's not fixed at the time that the referring statute was enacted we don't think that the jam Court had occasion to get to the level of specificity uh required to resolve this case so every party in in here let me just interrupt you there I'm sorry when a statute refers to a general subject the statute adopts the law on that subject as it exists whenever a question under the statute arises there's other language too I mean I the reference is to an external body of potentially evolving law so that's the general rule this court has adopted and and it's for you to overcome that General presumption isn't it I don't think so Justice scor the court actually articulated two branches of the Canon it said if there's a reference to a general body of law it evolves if there's a reference to a specific can sometimes be fixed sometimes but generally if there's reference to a general body of law the rule is always an exception that that it takes it as it finds it yes I think on its face the Canon here would suggest it's fixed because this is a specific reference all the parties agree that that is overcome here I think once the implication of the Canon is overcome the court should just look to congress's intent without further reference to the Canon it should just ask what did Congress intend here and for the textual reasons you and I discussed earlier and I will say even if you think that this Falls within the dynamic prong of the reference Cannon yeah all of the parties agree that uh the schedules evolve and that this statute does not reference the schedules as they existed at the time of the aa's enactment the question is which of our Dynamic reference points is correct and I don't think you you can see that it's Dynamic too but just it stops at a certain point we con see it's not fixed at the time correct I I don't con see that that branch of the Canon necessarily applies but if you thought that it did I don't think it supplies the requisite granularity to figure out which of the dynamic points that we're arguing about is correct and this is evidenced by the fact that both Mr Jackson and Mr Brown claim that the reference Canon supports their position even though they have different positions thank you what do I do I found it curious that the government argued for a time of federal offense approach in the court of appeals in brown it's now changed its position it wasn't the solicitor general making the argument down there you're entitled to raise any argument you want but it does suggest to me that there is a reading of this statute that comports with Mr Jackson's approach justce so to my just to clarify that the brown briefs were filed at a time when this issue was just arising it was very much in flux and the government offered the third circuit the Saving statute approach as a narrow way to resolve the case because Mr Brown would lose under either time of federal offense rule or time of he only under his current Mo and we we included footnote three of our court of appeals brief reserves the time of State Crime rule for cases where it might matter why is this issue only arising now that's a good question Justice Barrett I'm not sure about the answer it may be that um we've had more major descheduling recently than we did in in the first you know 20 or 30 years of the aa's existence but to my knowledge this has really only started to Arison in the past two or 3 years if I may for a moment just talk about Mr Jackson's background rule he says courts always apply current federal criminal law at the time of the offense conduct it's important to note that that rule doesn't exist in the abstract he draws it from three separate bodies of law he he amalgamates it first from the expost facto clause which says that post offense changes that make the offense more culpable don't apply retroactively that rule obviously doesn't implicate our position here second he he um draws it from the Saving statute which says that post offense changes that make the conduct less culpable also don't apply retroactively again that sheds no light on our position here and third he draws it from The Logical point that if you commit an act that's not a crime at the time you haven't committed a crime so if Congress passes a law that says you shall not murder they repeal that law and two days later you commit a murder you simply have not violated any law again that doesn't shed any light on our position here which depends on ascertaining the seriousness of a predicate conviction in that situation Congress repeals um a federal statute let's say we're looking at the federal prong and you commit federal crimes under the control Substances Act at the time and then Congress repeals that portion of the control Substances Act is the government's position that it would still be aqu AA predicat Justice Jackson if I'm understanding you correctly if you were convicted of a CSA offense yes Congress later repealed that aspect of the CSA but it didn't make the change retro retroactive so your conviction is still in the books yes yes that would qualify as an AC of predicate and my point in discussing the the sources of this background rule is to show that when you reduce it to these sources none of them shed any light on the question in this case to say that courts apply current federal law and therefore the cross reference points to the current federal schedules is entirely question begging it assumes the conclusion thank you Council this Thomas uh Mr rer just so I'm clear uh you do take the position that if the statute itself had been if AA had been amended to change this schedule if it was more Dynamic that it would uh uh petitioners would win Justice Thomas we agree that if the drugs were listed in the Tex of AA and that drug list was modified Mr Jackson's rule would apply now now this seems to be um uh in effect an amendment of AA so if in effect it's an amendment of AO why is it treated differently or less uh exactingly than an actual amendment of AA Justice Thomas we disagree that this this is equivalent to an amendment of AA we think the way to think about this is there's the text of the AA and then there's the external bodies of law that the requires courts to consult and it's referring courts to external bodies of law because it cares about the legal landscape in existence at the time of the prior conviction the external bodies of law include both the schedules and state law so just as in mcneel the court said you have to look at state law at the time of the prior conviction so too here jceo Justice Sor Justice K Justice Gorsuch just to follow up on Justice Thomas's question and not to belabor the point but let's suppose that the language of u g E1 was exactly as it is so all of your textual Clues are exactly as they are but in A1 uh instead of referencing the schedules it listed drugs you can see I think that despite all of your textual clues that you pointed to that that would be dynamic just disc just to clarify if an A1 it listed drugs yeah if in A1 it said a serious drug offense means conviction for the following substances cocaine not whatever the crazy drug is you was added in or whatever okay but if it listed those drugs I think you've conceded multiple times that that would be dynamic correct despite all of the textual clues that you hang your hat on in the preceding paragraph right and just as course it's just to be clear about our analytical framework if there's no cross reference there's no temporal question so we think the cross reference raises the temporal question and then the clues all of the clues wouldn't overcome the the dynamic nature of the of of the statute in those circumstances right I agree it would not overcome the actual text of the act of the ACT well the only the only change I'm positing is the definition of a of of a serious drug offense means an offense under the controlled substance Act yada y yada instead of that it's just a list right and I'm assuming the list also applies to sub close two and your hypothetical whatever it does yeah yeah so if if Congress actually listed drugs in both sub Clause one and sub Clause two we agree the effect that all the the textual clues that you otherwise think so important wouldn't overcome it correct Justice coret and the reason is that we think those Clues answer the temporal question raised by the cross reference if you eliminate the cross reference there's just no temporal question in the first place Justice Cavo Justice Barrett Justice Jackson so can I just ask you again about the um point of the legislation because you had it back and forth with Justice Kavanaugh and um it seems to do you does the government concede that incapacitation of certain serious offenders is what AA is about at at a genel high level of generality yes that's what the legislative history shows I mean there we have house reports we have Senate reports that say the purpose of this legislation is to curb armed habitual career criminals and then has a big discussion of how we identify those people so that's what this is about right yes Justice Jackson at a high level of generality we agree this is about incapacitating dangerous offenders and so with Justice gorsuch's point of the and and Justice kagan's point I just want to be clear if burglary is sorry if um other elements of this definition are changed like possession for example hypothetically you would agree that we'd be looking at the current definition and not the definition of serious drug offense at the time of of the state conviction if Congress actually amended in the text of the act of a definition of burglary we agree that definition would apply to Federal Offense conduct occurring thereafter and why is that why isn't that inconsistent with your argument that we should be applying the law at the time of the state offense the reason Justice Jackson is we agree that what he's being punished for is his Federal firearm offense that's what this is punishing him for but it's looking to Prior convictions to ascertain his dangerousness to ask is this the sort of person we really don't want possessing a gun is this a drug dealer who we really don't want possessing a gun and in ascertaining the seriousness of the prior convictions it makes sense to look to the legal landscape at the time no no no I'm saying so we have a definition we have a definition of serious drug offense and the definition says manufacturing Distributing or possessing a control substance you seem to be saying that if Congress changed that definition to drop possession out you would not consider or you would you would apply the new definition right even if it previously included possession and it was a categorical match before at the time of the state conviction I don't understand why the same argument doesn't apply to a change in control substance it's just another element of the definition Congress changes it so why would you be saying that it has to be a categorical match only back at the time and not today right Justice Jackson um we agree that the statute of conviction the AA in effect of the time of the federal offense is the one that applies because if you don't violate the version of the AA at the time of your federal offense conduct you haven't violated the law but the AA references external bodies of Law and so just as in mcneel the court looked at the state law in effect at the time of the previous conviction so do here we think the this is an analogous inquiry thank you thank you Council Mr ad rebuttal thank you Mr chief justice the colloques between Justice Jackson Justice KAG Justice Thomas illustrate why the government's position fails in this case i' like to read you a quote from this Court's decision in angle versus Davenport from 1926 it's on page eight of our reply brief and it says that the adoption of an earlier statute by reference makes it as much a part of the later act as though it had been Incorporated at full length that is exactly what AA is doing with the Controlled Substances schedules there is no legal basis to say that U AA that we would win this case had Congress enumerated all of the substances but we lose this case just because Congress Incorporated them by reference but as Mr rer repeatedly said at the podium today that is the government's position in this case we submit there is simply no legal basis to draw that sort of Distinction and we think that is simply the end of the case the government's remaining arguments based on mcneel culpability backward looking all of that proved too much because it would apply to all of the criteria in AA burglary possession everything in AA and the government agrees that cannot be right so that argument fails too uh I want to address briefly the reference Cannon because it came up a bunch I'm not sure why the government is referring to it because there's no dispute in this case that the reference Cannon it's not the government's position is not even one of the options there's two options there's 1986 which would be for static reference which no one thinks applies here and there's a dynamic uh General law which is everyone agrees this is dynamic and so the question when you have a general reference is when does the question arise under AA the question arises when the person commits the 922g offense that's it finally I want to address notice to address Justice Kavanaugh's earlier concerns and and Justice Gorsuch just concerns about exp poost facto our position on that is that if you think about a recidivist statute a newly enacted one let's say it would have to apply to Prior convictions that predated it that's the whole point of the recidivist statute but if you analyze notice at the time of the prior conviction you couldn't do that it would violate the EXP poost facto clause in that situation that's why AA covers preac predicates Greger versus Burke held that in the exact same situation and this is not something of the past Congress revises recidivist statutes all the time it just did that in the first step act the Naf debrief talks about this 841 is the federal drug statute it apply it has enhanced mandatory minimums based on prior convictions for serious drug felonies serious violent felonies those are brand new terms so under the government's view of notice those those terms don't that statute doesn't apply to any conviction that predates the first dep Act of December 2018 that would be the logical implication of the government's argument and and nobody thinks that Congress could have intended that we ask that the court reverse the Judgment of the 11 circuit thank you thank you Council case is submitted the honorable court is now adjourned until tomorrow at 10:00 okay