Timbs, Fines, and the 8th Amendment

Timbs v. Indiana, No. 17-1091 (U.S. Feb. 20, 2019).

So now we know: The Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the states under the Fourteenth Amendment’s Due Process Clause.

Yesterday, the Supreme Court decided Timbs v. Indiana, letting us know that the excessive-fines clause is “‘fundamental to our scheme of ordered liberty,’ with ‘dee[p] root[s] in [our] history and tradition.’” (Citation omitted; alterations in the original.)

Mr. Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft, and the trial court gave him a year of home detention and five years of probation. He also had fees and costs totaling $1,203.

Things got interesting in relation to Mr. Timb’s Land Rover, which police had seized during the arrest. Timbs had paid some $42,000 for the vehicle, using money he had received from an insurance policy when his father died. Although the state court found that the vehicle had been used to facilitate violation of a criminal statute, it denied the requested forfeiture, reasoning that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for the drug conviction. As things unfolded, however, the Indiana Supreme Court held that the Excessive Fines Clause constrained only federal action and was inapplicable to state impositions. The Supreme Court granted cert.

And so here we are with a new understanding of the Eighth Amendment, fines, and due process.

The opinion notes that “all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality.” It points out that, “[f]or good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties.”

The Court rejected Indiana’s argument “that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures.” It reasoned that, “[i]n considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.”

Justice Gorsuch concurred, looking at things from a slightly different perspective: “As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.”

In his concurrence, Justice Thomas fully adopted the privileges-or-immunities approach. He went all in, pushing substantive-due-process buttons: “Because the oxymoronic ‘substantive’ ‘due process’ doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any ‘guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not.’” He declined “to apply the ‘legal fiction’ of substantive due process.”









Taking a Break from Mens Rea and Looking at Sentencing Issues: A Victory for Those Who Like Keepin’ It Limited for Shepherd Documents

Yesterday was a good day for Mr. Solano-Hernandez, who’d been convicted and sentenced for illegal reentry in the Southern District of Texas. After the Supreme Court granted the defendant’s writ and remanded, the Fifth Circuit vacated the defendant’s sentence and remanded for resentencing in United States v. Solano-Hernandez, Nos. 15-41554/582 (5th Cir. Feb. 13, 2019) (unpublished).

All along, the reviewing courts said the case involved error. The problem was one of whether the error was plain. Originally, the Fifth Circuit found sentencing error, but said it wasn’t enough. The Supreme Court, however, granted cert, reversed the Fifth Circuit’s original judgment, and remanded for reconsideration in light of its rejection of the Fifth Circuit’s “shock-the-conscience” element of plain-error review in the recent Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-11 (2018).

On this current go around, the Fifth Circuit came out differently on the sentencing result, finding that imposition of the 12-level sentencing enhancement constituted plain error. The 12-level enhancement rested on a supposed prior crime of violence: a 1995 New Jersey conviction for endangering the welfare of a child. (Mootness was an extra issue in the case. Because the defendant remained subject to a term of supervised release, the case was not moot, even though the defendant had been released from Bureau of Prisons custody.)

The question boiled down to whether the district court had clearly erred in relying on a “statement of reasons” attached to a New Jersey state-court judgment to narrow the analysis of the statute of conviction. Essentially, the issue was one of Shepard documents and what courts can review under Shepard v. United States, 544 U.S. 13, 16 (2005). The Fifth Circuit reiterated that, unlike the charging document, the guilty plea, or the factual basis for the plea confirmed by the defendant, sentencing reasons and factors do not just define the charge and guilty plea. Rather, they frequently refer to facts neither alleged nor admitted in court. Reliance on a “statement of reasons” to analyze the scope of a prior conviction constitutes clear error.

Further Examination of the Evolution of Mens Rea Concepts in the Context of Statutory Rape

We’ve been considering the evolution of concepts of mens rea in the context of statutory rape, especially as that offense is defined in Texas. In our last post, we started examining the cert petition that arose out of the decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014). You can read the cert petition here.

Basically, in this country’s early legal climate, even a “reasonable but mistaken belief” concerning an alleged victim’s age could not vitiate culpability for statutory rape because that alleged victim being of age would not have rendered a defendant’s actions legal under old common-law rules. A defendant’s culpable mental state (knowledge he or she was committing another offense like that of fornication) provided the mens rea necessary to support a conviction—the prosecution didn’t need to show that the defendant knew his or her sexual partner was not of legal age because the defendant was committing a crime regardless.

A 1909 Texas opinion (Zachery v. State, 122 S.W. 263, 265 (Tex.Crim.App. 1909)) explained that a person “who has connection with a female which would, in any event, be unlawful, must know at his peril whether her age is such as to make the act a rape.”

Strict liability in this context thus seems like an arguably recent development, relatively speaking. As Mr. Fleming traced the history in his cert petition, beginning in the early twentieth century, state courts began to dispense with a “transferred-intent” theory in this context and began adopting a truly strict-liability interpretation of statutory and common law, one that eliminated any requirement of proof concerning knowledge of age—or even proof of a defendant’s knowing commission of another offense.

Academic authorities and legal commentaries, however, have recognized that the exception to the mens rea requirement in this context has rested on a theory of “transferred intent.” In Massachusetts, in 1896, for example, knowledge of fornication could substitute for lack of knowledge concerning a victim’s age. Transferred intent mattered.

And following Lawrence v. Texas, 539 U.S. 558 (2003), a defendant’s knowledge that he or she is engaging in fornication or adultery can no longer provide the necessary culpability; it can’t substitute for a defendant’s lack of knowledge that a sexual partner was not of legal age.

The Texas statute defining statutory rape does not qualify as a “public welfare” provision: The conduct proscribed doesn’t somehow threaten the entire community’s health or safety. The complete elimination of any mens rea requirement would only protect a discrete (and very small) class of people, namely those under the age of seventeen, who reasonably appear older, and who deliberately conceal or affirmatively mislead others concerning their true age. The idea of a “public-welfare exception” to the mens rea requirement generally focuses on statutes condemning individual acts capable of inflicting widespread injury on the broader community. Courts have recognized that statutory rape does not qualify as a public-welfare offense.

In addressing due-process fundamentals, Mr. Fleming’s cert petition explained that, “[b]y completely dispensing with a mens rea requirement concerning a sexual partner’s age, and by imposing as punishment a potential life sentence to confinement,” the Texas statute was “offensive to principles ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”

This issue merits attention now. As Mr. Fleming’s cert petition pointed out, state courts of last resort and state legislatures across the U.S. “have reached diametrically divergent conclusions regarding whether a criminal defendant’s knowledge of his sexual partner’s age is relevant or legally necessary for conviction of the offense of ‘statutory rape.’” Where the fundamental right to engage in consensual adult sexual relations is chilled by adoption of purely “strict liability” offenses, but is not similarly chilled in other states because of mens rea requirements, the U.S.  “Supreme Court’s intervention to resolve this constitutional disparity is surely warranted.”




Mens Rea: Returning to Texas Statutory Rape

Our discussion of mens rea started out with a brief exploration of statutory rape and Texas case law. Let’s go back to that context for a few posts. After the Texas Court of Criminal Appeals announced its decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014), which we discussed in this blog a few weeks ago and which involved a conclusion that mens rea related to age is not necessary to support a conviction for statutory rape in Texas, the defendant Mr. Fleming sought review in the U.S. Supreme Court. In his petition for a writ of certiorari, he explored the history of statutory rape and the evolution of the law related to this offense.

You can read the cert petition here.

The question presented for review was whether § 22.021 of the Texas Penal Code was unconstitutional under the Due Process Clause of the Fourteenth Amendment because of its failure to require the state to prove a culpable mental state/mens rea relating to a sexual partner’s age, or because of its failure to permit presentation of an affirmative defense based on a subjectively and objectively reasonable belief that a sexual partner was of legal age.

In examining the issue, Mr. Fleming considered nineteenth-century English opinions on statutory rape and mens rea in related contexts. He cited Judge Hawkins, who wrote in Queen v. Tolson (a bigamy case) in 1889. “The ground upon which I have arrived at this conclusion,” Judge Hawkins said, “is simply this; that, having contracted her second marriage under an honest and reasonable belief in the existence in a state of things which, if true, would have afforded her a complete justification, both legally and morally, there is an absence of that mens rea which is an essential element in every charge of felony.”

Mens rea comprised a fundamental concern.

The confusion related to its application in the statutory-rape context arose because the act of unmarried sexual conduct was itself a violation of law and morality “in the olden days.”

As Mr. Fleming laid out in his cert petition, treatises from the 1800s considered a defendant’s “intent to violate the laws of morality and the good order of society,” regardless of “the consent of the girl” or lack of knowledge of her age. Essentially, “at the time the Fourteenth Amendment was ratified, proof of a defendant’s ‘knowledge’ that he was, in any event, violating other written ‘laws’ (whether ‘criminal’ or ‘moral’), would allow for his conviction of statutory rape notwithstanding his lack of knowledge that his minor consort was under a prescribed legal age.” The same principles applied “with regard to Texas decisional law, insofar as it would reveal the status of the mens rea requirement in the Nineteenth Century.”

Texas cases from this era considered the issue in this manner. “Connection with a child under the age of consent being criminal, one who has connection with a female which would, in any event, be unlawful, must know at his peril whether her age is such as to make the act a rape.” Old fornication statutes prohibited unmarried sexual conduct regardless of age. So as Mr. Fleming pointed out in his petition, “a ‘connection with a female’ was, ‘in any event,’ unlawful in certain circumstances under Texas statutory law.”

Because the law has evolved, application of mens rea concepts needs to evolve. We will discuss, in upcoming posts, more of this history, the evolution of the law, and the need for new approaches.

Another Look at Rehaif, Justice Gorsuch’s Jurisprudence, and Mens Rea

Earlier this week, we discussed the U.S. Supreme Court’s very recent grant of certiorari in Rehaif v. United States, No. 17-9560. In his petition for cert, Mr. Rehaif relied heavily on then-Judge Gorsuch’s concurrence in United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012). In that concurrence, then-Judge Gorsuch pointed out that “just because our precedent indubitably commands this result doesn’t mean this result is indubitably correct.” This concurring opinion deserves consideration in light of the Rehaif cert grant.

In Games-Perez, the court considered the situation of a man who had pleaded guilty in state court under a deferred-judgment arrangement. Less than a year after entering into that agreement, which included a two-year deferral, officers found the defendant with a firearm. The defendant then faced a federal felon-in-possession charge.

And the 10th Circuit came to face an issue very close to that which appears in Rehaif: whether §§ 922(g)(1) and 924(a)(2) require “knowing” possession of a firearm and “knowing” that one has sustained a felony conviction.

In considering the issue, then-Judge Gorsuch explained that § 922(g)(1) criminalizes possession of a firearm “when three elements are met—(1) the defendant was previously convicted of a felony, (2) the defendant later possessed a firearm, and (3) the possession was in or affecting interstate commerce.” He clarified that § 922(g) itself doesn’t send anyone to prison for violating its terms. Rather, § 924(a)(2) does that job, authorizing prison time for those who knowingly violate § 922(g).

While precedent has read “the word ‘knowingly’ as leapfrogging over the very first § 922(g) element and touching down only at the second,” this interpretation of the statutory language “defies linguistic sense—and not a little grammatical gravity,” then-Judge Gorsuch emphasized. Ordinarily, when a criminal statute introduces the elements of an offense with the word ‘knowingly,’ courts apply that word to each element of the offense.

Looking at §§ 922 and 924, then-Judge Gorsuch pointed out that “[t]his isn’t . . . a situation where ‘knowingly’ begins a long statutory phrase containing several elements and a reasonable question arises how far into the thicket the ‘knowingly’ adverbial modifier extends.” If, he explained, the statutes “had said ‘whoever knowingly possesses a firearm after being convicted of a crime,’” then “it might be possible to argue that ‘knowingly’ modifies only ‘possesses a firearm’ and not the later prepositional phrase, ‘after being convicted of a crime.’” But that language simply wasn’t the language at issue. Congress laid out “three elements in a particular order. And it makes no sense to read the word ‘knowingly’ as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.”

Then-Judge Gorsuch made another critical point: “How can it be that courts elsewhere read a mens rea requirement into statutory elements criminalizing otherwise lawful conduct, yet when Congress expressly imposes just such a mens rea requirement in §§ 922(g) and 924(a) we turn around and read it out of the statute?”





Rehaif May Mean a New Take on Reading Statutes, One that Could Call for Revisiting Old Perceptions of Mens Rea for Texas Statutory Rape

Last week, we discussed certain constitutional issues raised by the Texas statutory-rape provisions. Timing here seems especially fitting given the U.S. Supreme Court’s grant of certiorari in Rehaif v. United States, No. 17-9560, on January 11, 2019. As the petitioner in Rehaif couched the issue, that case involves the question of “Whether the ‘knowingly’ provision of § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, as has been urged by then-Judge, now Justice Gorsuch, or whether it applies only to the possession element, as has been held by the courts.”

The Rehaif case arose in the Eleventh Circuit and involved a UAE citizen losing his student (and thus immigration) status yet participating in activities at a shooting range in Florida. When police questioned him about an unrelated call, Mr. Rehaif admitted he’d been at a gun range. Authorities charged him with being an unlawfully present alien in possession of a firearm. After conviction at trial, Mr. Rehaif received an 18-month sentence.

In his petition for a writ of certiorari, Mr. Rehaif acknowledged that, so far, no circuit has required proof of a defendant’s knowledge of his or her prohibited status under any subsection of § 922(g). He suggested, however, that the better approach to the issue, one advocated by some judges, is that the government should have to prove the defendant knew about his or her prohibited status for a § 922(g) offense.

Mr. Rehaif quoted Judge Gorsuch for the proposition that, when a criminal statute introduces the elements of a crime with the word “knowingly,” this knowledge requirement applies to each element of the offense. For Mr. Rehaif, the issue could have made a difference with the jury. Had the trial court instructed the jury differently, the jury may not have found Mr. Rehaif guilty: He had a viable defense that he did not know of his prohibited status. His school had sent an email allegedly notifying him that he had been “academically dismissed” and that his “immigration status w[ould] be terminated,” but no one at the school attempted to confirm that Mr. Rehaif had received the emails. Nor did anyone try to talk to Mr. Rehaif, who did not respond to the emails.

As with shooting at a gun range, having sex is lawful. The only thing that would make it unlawful under the Texas provisions we have been discussing is the age of one of the participants—just as unlawful immigration status is the crux in Mr. Rehaif’s case. “Knowledge” requirements should apply to these statuses.

In its opposition to a grant of certiorari in Rehaif, the government cited case law holding that “knowledge” need only apply to possession of the firearm—not to the defendant’s immigration status. It pointed out that Congress has not revisited the issue, and it cited some legislative history. It also pointed to an alleged admission that Mr. Rehaif had known of his change in status. The government, however, didn’t truly reach the logic of Mr. Rehaif’s arguments, a logic Mr. Rehaif reemphasized in his reply, citing Justice Gorsuch’s pre-SCOTUS words on the matter.

Sections 922(g) and 924(a)(2) contain a mens rea requirement similar to that of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which, as we posited last week, display constitutional infirmities. It will be interesting to watch Rehaif unfold.






Void for Vagueness: Constitutional Issues Raised by the Texas Statutory-Rape Sections

In the next few weeks, we will explore the constitutional infirmities of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which are unconstitutionally vague on their face because they fail to specify the necessary mens rea. Under § 22.011(a)(2), it is a crime to “intentionally and knowingly” commit certain sexual acts with a “child.” Section 22.011(c)(1) defines “child” as anyone under 17 years old who is not the alleged actor’s spouse.

In 2014, the Texas Court of Criminal Appeals found that the “Texas Penal Code does not specify that mens rea as to the age of the victim is necessary.” Fleming v. State, 441 S.W.3d 253, 258 (Tex. Crim. App. 2014). Yet as just explained, § 22.011(a)(2) requires the accused to act “intentionally or knowingly,” and a year after the court ruled in Fleming, the Court of Criminal Appeals held that, in a circumstances-of-conduct offense, mens rea attaches to the circumstance making the act illegal. See Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015). A culpable mental state must attach to the circumstance that constitutes “the gravamen of the offense.” See id.

Section 22.011(a)(2) enumerates such a circumstances-of-conduct offense rather than a nature-of-conduct offense. In Fleming, Presiding Judge Sharon Keller dissented. She pointed out the substantive-due-process issues raised in this context by the U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). The rationale for holding a defendant strictly liable because they should have at least realized that they were committing the illegal, immoral, or risky conduct of fornication with an adult has been negated entirely by the holding in Lawrence. Fleming, 441 S.W.3d at 281. (Keller, P.J., dissenting). In the wake of Lawrence, sexual activity between consenting adults is not subject to strict legislative regulation; “thus, a defendant does not necessarily act at his peril when he reasonably believes that he is having sexual relations with an adult.” Id. The Lawrence decision “led at least two law professors to contend in published law review articles that due process requires that a defense be available to an individual who engages in sexual intercourse with a person that he non-negligently believes is an adult.” Id.

Courts finding that Lawrence does not apply in cases involving minors “have missed the point,” as Presiding Judge Keller explained. Id. at 282. These courts have taken an overly narrow view of the rights at stake. See id. If a defendant non-negligently believed they were having consensual sex with an adult, they non-negligently believed in the existence of circumstances that would provide constitutional protections from liability under Lawrence. See id. “Such a non-negligent belief would negate the existence of even the most minimal sort of mental culpability.” Id.

Under this reasoning, fornication is no longer considered immoral under Lawrence, so a violation of § 22.011(a)(2) is not a nature-of-conduct offense. Rather, it is a circumstances-of-conduct offense, where the circumstance at issue is the age of the complainant. As such, the decision of the Court of Criminal Appeals in Robinson requires that the relevant mens rea attach to the age of the complainant.

This mens rea related to age, however, would not be apparent to any person reading §§ 22.011(a)(2) and (c)(1). Thus citizens, law-enforcement officers, and prosecutors lack the requisite guidance to comply with or enforce the law. The federal prohibition in 18 U.S.C § 2241(d) provides a useful comparison. Unlike §§ 22.011(a)(2) and (c)(1), § 2241(d) explicitly provides that, “[i]n a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” Sections 22.011(a)(2) and (c)(1) simply fail to provide the same warning. Section 22.011 is unconstitutionally vague on its face.

First Steps of the First Step Act

Well, the First Step Act is taking effect. Matthew Charles’s case received attention in 2018, when his “erroneous” release from prison as a career offender under the retroactive crack-cocaine guideline changes and 18 U.S.C. § 3582(c)(2) led to a government appeal and the Sixth Circuit affirming reinstatement of his original 35-year sentence. He returned to prison after that decision, but now he is going home for good.

You can read about his journey here:


Despite affirming re-imposition of the original 35-year sentence, the Sixth Circuit recognized Charles’ extraordinary record of rehabilitation and good works and recommended he pursue an application for executive clemency. Now, the First Step Act is putting Mr. Charles back into his community to return to the volunteering and service he pursued during his ill-fated initial release. Judge Aleta Trauger, in the Middle District of Tennessee, signed an order on January 3, 2019, ordering immediate release.

Section 404 of the First Step Act broadens retroactive application of the provisions of the Fair Sentencing Act of 2010. We will be watching and posting as the effects of the First Step Act make themselves felt.

Plea Negotiations and Waivers: A Reminder

The Fifth Circuit started 2019 with a reminder to counsel.

In United States v. Hicks, No. 17-51101 (5th Cir. Jan. 2, 2019) (unpublished), the court cautioned counsel: “pursuing an appeal contrary to a valid waiver and without responding to the Government’s invocation of the waiver is a needless waste of judicial resources and could result in sanctions.” The defendant had appealed his 168-month, within guidelines sentence for a crack-cocaine offense. The government sought to enforce the waiver, which covered the defendant’s right to appeal “any” aspect of the defendant’s conviction or sentence. The court dismissed, finding the waiver applied.

Just another reminder for counsel to proceed with caution in negotiating plea agreements when waivers are on the table.

Case Analysis, by James McComas (a review)

James McComas has written an excellent short book that deserves to be on the shelf of every criminal defense attorney.
His core insight is that, in every case, only a few facts and circumstances determine the outcome for either side. Once these “outcome levers” are identified, our job as defense lawyers is to eliminate or minimize our opponent’s points and maximize ours.
To this end, McComas advocates a five step process:

1. Identify Legal and Factual Theories.

2.  Identify Outcome Levers. McComas defines an outcome lever as “anything — a fact, a piece of evidence, a psychological reality, a jury feeling, a current event, a cultural phenomenon, or other factor — that is capable, in and of itself, of determining the outcome for one side or the other.”

3.  Maximize or minimize outcome levers.
The most readily available means to maximize or minimize outcome levers include:
  • Investigation
  • Continuing Case Analysis
  • Pretrial motions litigation
  • Arranging expert testimony
  • Preparing to cross examine opposing witnesses
  • Preparing defense witnesses to testify
  • Well founded timely objections
  • Jury instructions
  • Voir Dire
  • etc.
4.  Choose the Best Theory of the Case
5.  Identify and Deal with Trapdoors. McComas defines trapdoors as “reasoning by which jurors can buy most of our position but still return a verdict against our client.”
McComas then goes on to describe what attributes he believes a theory of the case must have before it will be accepted by the jury. It must be:
  1. Productive of an acquittal.
  2. Possible
  3. Plausible
  4. Persuasive
  5. Playable, i.e. not too close to the reality our opponent seeks.
  6. Powerful
  7. Provable.
It is my belief that whether they do so deliberately or subconsciously, all great trial lawyers engage in some form of the process McComas advocates. Up until now, young lawyers had to discover these truths for themselves or be lucky enough to learn them from a mentor. Now they are available to all.