Suitmart or Saville Row

Modern society has conditioned people to look for off the rack solutions to all of life’s problems. “There is an App for that!”, or so we are told. The legal community is not immune from this mindset. Lawyers too succumb to the siren song of quick, easy, and most important of all, fast fixes. After all, there is a vibrating device in their pockets begging for attention, not to mention family, health and all of life’s other distractions. “If I  just had the right go-by motion to suppress, my problems would be solved.” “If I just apply the cross-examination technique taught by so-and-so guru at the latest continuing legal education seminar, then no witness can stand in my way.” “If I just use the right AI assisted document review software, then I won’t have to look at all these dastardly documents”

Too often lawyers succumb to this siren song. They plagiarize the briefing of another, possibly less skilled but harder working, colleague. They apply the cross examination technique they learned at the CLE seminar without stopping to consider whether it is the right approach for the witness. They never, with their own eyes, review the reams of discovery produced by opposing counsel.

Depending on the client’s expectations, this may or may not be the wrong approach. There is a range of service that is acceptable under State Bar Rules. After all, men shop at Suitmart just as they shop on Saville Row. And if Saville Row were the only game in town, very few would be able to dress at all. What is certainly wrong is promising the client custom and delivering ready to wear.

Excellent legal work is a long, painstaking and labor intensive process. The lawyer must start from scratch. Does this mean the lawyer should forget what she knows? Of course not. Presumably one of the reasons the client hired the lawyer was because of experience. What it does mean is that every piece of work product that comes out of that lawyer’s office must be tailored to the case. No shortcuts.

From a Practical Perspective, What Could Gamble Mean in the Supervised-Release Context?

With Kahler and the insanity defense, it seems fairly straightforward to see how a Supreme Court decision favorable to the petitioner could affect jurisprudence going forward: states would not have the option of eroding/eliminating the insanity defense.

A decision favorable to the petitioner in Gamble would likewise have constitutional dimensions obvious from its main issue, but it could—perhaps—have more subtle effects as well. One such effect might involve supervised-release-violation proceedings.

As the law currently stands, defendants can (and often do) face both state prosecutions and federal supervised-release revocations for offenses they engage in while serving terms of federal supervised release (after release from prison on earlier federal charges). These dual prosecutions can and do lead to consecutive sentences, with defendants receiving lengthy prison terms for a single offense. For example, a defendant released from federal prison may have a three-year term of supervised release to serve (somewhat similar to parole, though the federal system does not have actual parole). If that defendant sells drugs while on supervised release, they can face prosecution in state court for the new drug charge and they can face revocation of their federal supervised release and another term of federal custody for the supervised-release violation. That federal custody term can be set to run consecutive to the state drug sentence, even though both sentences are for the same drug sale.

With Gamble pending, one may ask: could a decision favorable to the petitioner in Gamble have an effect on these consecutive supervised-release-violation sentences? The issue doesn’t lend itself to straightforward speculation. Jurisprudence on the issue of supervised-release violations suggests that courts could wriggle away from the issue—regardless of the holding that comes down in Gamble—by saying that the supervised-release-violation sentence isn’t really based on a new prosecution doubled up with the state charge. Rather, the theory goes, supervised-release violations relate back to the earlier, original federal charge that gave rise to the supervised-release term, which predated and does not relate to the later drug-sale offense conduct.

The Gamble petition, however, addresses the idea of the separate-sovereigns exception to the Double Jeopardy Clause resting on the vindication of the interests of separate sovereigns. It seems far from sure that Gamble would leave intact the idea that a separate set of prosecutorial interests would insulate consecutive federal supervised-release-violation sentences from attack . . . in the event the High Court does dispense with the separate-sovereigns exception.


Double Jeopardy and Gamble v. US

While we are examining cases pending in the U.S. Supreme Court, it makes sense to take a look at Gamble v. United States, No. 17-646 (Brief for Petitioner filed Sept. 4, 2018; argued Dec. 6, 2018). The case presents a simple, but vital, question:

“Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.”

The law as it currently stands, with the separate-sovereigns exception to the constitutional prohibition against double jeopardy, allows a person to face charges—and be convicted and sentenced—for the same offense twice if a state charges him or her and the federal government does likewise. For the petitioner in Gamble, for example, a faulty headlight led to his arrest in Mobile, Alabama. Marijuana, a digital scale, and a handgun in the car led to charges, which, when combined with a prior felony conviction, led to a one-year sentence in Alabama for being a felon in possession of a firearm.

The rub arose when, during the state-court proceedings, the feds stepped in and also charged the defendant with being a felon in possession of a firearm—this time under federal law. The defendant objected to the federal prosecution, arguing that it violated his Fifth Amendment right against being placed twice in jeopardy for the same offense. He moved, unsuccessfully, to dismiss his federal indictment.

The Supreme Court is now considering whether to overrule the separate-sovereigns doctrine. The Gamble petitioner has pointed out that the text of the Double Jeopardy Clause does not contemplate an exception to its protection from double prosecution and punishment for the same offense—Congress could have phrased the clause to exclude prior state convictions, but it did not. It considered and rejected such an exclusion and instead phrased the clause in absolute terms.

In facing the issue of stare decisis, the Gamble petitioner points out that the separate-sovereigns exception “was egregiously wrong from the start,” and thus carries less precedential force. The doctrine “originated in ill-considered dicta and solidified through a series of decisions that ignored prior precedents and never meaningfully engaged with the text or original meaning of the Double Jeopardy Clause.” The petitioner cites decisions that “were decided by the narrowest of margins over spirited dissents” to illustrate the controversy and scant support for the doctrine. Supreme Court justices, lower-court judges, and legal scholars have long questioned the separate-sovereigns exception. Thus, stare decisis lacks force here where the “doctrinal underpinnings have been eroded.”

The Gamble petitioner cites Justice Black: “‘Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,’ with roots in Greek and Roman law.” Regarding federalism, the Gamble petitioner makes an interesting observation. The separate-sovereigns exception contravenes foundational concepts of federalism. The division of power between two distinct governments (state and federal) aimed at affording people “double security,” as discussed in Federalist No. 51. Federalism was supposed to protect liberty—not undermine it. Yet with the separate-sovereigns exception to the double-jeopardy prohibition, we’ve seen a marked erosion of liberty.


Does the Insanity Defense Carry a Constitutional Dimension?

Today (March 18, 2018), the Supreme Court granted cert in Kahler v. Kansas to consider whether the Eighth and Fourteenth Amendments allow states to eliminate the insanity defense.

At this time, Kansas and four other states (Alaska, Idaho, Montana, and Utah) do not recognize a defense to criminal liability involving mental disease precluding knowledge that an act was wrong. As the cert petition in this case explains, in Kansas, “Even a capital murder defendant need not be of sound mind. So long as he knowingly killed a human being—even if he did it because he believed the devil told him to, or because a delusion convinced him that his victim was trying to kill him, or because he lacked the ability to control his actions—he is guilty.”

Yet for centuries, our legal system has declined to punish people for crimes for which they are not morally culpable.

Kansas departed from the M’Naghten rule in 1996. Under the current rule, only in rare cases will even legally insane defendants actually lack the requisite mens rea based purely on a mental defect. The petitioner in Kahler has argued that this approach to criminal liability constitutes a constitutional violation because: 1) The Due Process Clause prohibits criminal liability that offends principles of justice so rooted in the traditions and conscience of the country as to be “fundamental”; and the Eighth Amendment bars criminal punishment that the common law condemned in 1789 or which violates fundamental human dignity, as reflected in contemporary values. As the Kahler petitioner points out, the insanity defense has deep roots in the Anglo-American legal tradition, and the majority of states have always permitted the defense.

Seven states recognize the insanity defense as constitutionally mandated. For example, the Nevada Supreme Court has said that the legislature may not abolish insanity as a complete defense to criminal liability. Nevada currently uses the M’Naghten rule. Other state courts have found it “too plain for argument” that defendants have been entitled to an insanity defense since before ratification of the Constitution.

In the five states that have abrogated the M’Naghten rule, with courts upholding statutes against constitutional challenges, the rulings have often come by a narrow vote over vigorous dissent. Four of these states have taken this approach even in death-penalty cases (Kansas, Idaho, Montana, and Utah).

As the Kahler petitioner points out, this issue carries the gravest considerations: one can certainly question whether a juror would be as likely to vote to kill a defendant who did not know their “murderous act” was wrong.

For centuries, our legal system has reserved criminal liability for people who can distinguish right from wrong. The Kahler petitioner has observed that the Supreme Court has said that it is a “humane” common-law principle that one cannot say a person deliberately intended to take life (and is thus not liable for murder) unless, at the time of the act, that person “had sufficient mind” to grasp the criminality or the right and wrong of the act. Justice Frankfurter said that “it has been a postulate of Western civilization that the taking of life by the hand of an insane person is not murder.”

Regarding the four traditional penological justifications for punishing criminal conduct, none would support a position abolishing the insanity defense. Retribution is not served by punishing those whose mental states are so distorted by a mental illness that their awareness of the crime and punishment has little or no relation to an understanding of those concepts as shared by the community. No deterrence value exists in punishing the insane because such punishment does not provide an example to others. Incarceration may incapacitate a mentally ill person for the duration of their sentence, but that person may remain unwell, and potentially dangerous, after the sentence ends. Prison does not serve to rehabilitate the mentally ill.

From a frequency perspective, one set of statistics has found that the insanity defense arises in about 1% of all felony cases . . . and that juries find about ¼ of those defendants “not responsible.”

Read the petition here.

Notices of Appeal, Appellate Waivers, and Effective Assistance: SCOTUS Gives Us Garza v. Idaho and Another Reminder to File Those NOAs

Last week, the Supreme Court decided Garza v. Idaho, No. 17-1026, giving defendants with appellate waivers a point on the scoreboard. In Roe v. Flores-Ortega, 528 U. S. 470 (2000), the Court said that prejudice is presumed when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued. A defendant need not make any showing regarding the merits of his or her underlying claims. With Garza, the Court considered whether the same rule applies for defendants who have signed appellate waivers. The Court held “that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.”

The defendant in Garza had repeatedly told his attorney he wanted to appeal. His attorney even recognized this request, discussing it in an affidavit. The attorney pointed out the hurdle of the defendant’s appellate waiver and did not file a notice of appeal in time.

The Court began its analysis by looking at the term “appeal waiver.” While this “term is useful shorthand for clauses like those in Garza’s plea agreements, it can misleadingly suggest a monolithic end to all appellate rights,” the Court stated. Yet “no appeal waiver serves as an absolute bar to all appellate claims.” Courts widely agree that valid and enforceable appellate waivers only preclude challenges that fall within their scope. The Supreme Court reminded observers that “even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver.” And “all jurisdictions appear to treat at least some claims as unwaiveable.” Thus “a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.”

In considering notices of appeal, the Court reasoned that “filing a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative.” Regarding a strategic call to forgo filing a notice of appeal because of a potential claim of breach of a plea agreement, the Court did “not address what constitutes a defendant’s breach of an appeal waiver or any responsibility counsel may have to discuss the potential consequences of such a breach.” Rather, it found that “it should be clear from the foregoing that simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope. And in any event, the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.”

The Court reminded observers “that when deficient counsel causes the loss of an entire proceeding, it will not bend the presumption-of-prejudice rule simply because a particular defendant seems to have had poor prospects.”

Justice Thomas dissented and was joined by Justice Gorsuch and, in part, by Justice Alito. This dissent found that “Garza’s counsel quite reasonably declined to file an appeal . . . , recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain.” Justice Thomas expressed his view that “a defendant who has executed an appeal waiver cannot show prejudice arising from his counsel’s decision not to appeal unless he (1) identifies claims he would have pursued that were outside the appeal waiver; (2) shows that the plea was involuntary or unknowing; or (3) establishes that the government breached the plea agreement.”

Justice Thomas pointed out that “[t]he deficiency analysis in this case would likely be different if Garza had informed his counsel that he desired to breach the plea agreements and file an appeal—despite the waiver and in full awareness of the associated risks— for the sake of an identified goal that had any hope of being advanced by the filing of an appeal.” The majority’s rule, Justice Thomas opined, may be easy to administer, “but it undermines the finality of criminal judgments— a primary purpose of plea agreements—and disadvantages the public by allowing defendants to relitigate issues that they waived in exchange for substantial benefits.” In his view, it also burdens appellate courts that must address meritless appeals authorized by the majority’s decision. He noted that the majority’s rule could prejudice defendants because prosecutors may become less willing to offer “generous plea agreements” when courts refuse to afford the prosecution the benefit of its bargains, namely “fewer resources spent defending appeals.”

The bigger rub in the dissent involves the Sixth Amendment as a whole: “In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment.” The amendment, “as originally understood and ratified,” meant that defendants have a right to employ counsel, or to use the volunteered services of counsel. But, Justice Thomas observed, “the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel.” To him, this reading means “convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area.”

Commentary looking at the opinion has suggested that Justice Thomas may be attacking Gideon, and it’s hard to argue with that take. Language at the end of the opinion could be classified, in popular parlance, as somewhat “savage” if you’re in the public-defense camp. For example: “our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court has traditionally demonstrated in this area.”

The history and discussion in the dissenting opinion is very interesting for anyone curious about the roots of our constitutional protections, and the opinion provokes thought in multiple areas, including by observing that the Constitution, according to its terms, does not require any particular remedies for violations of its provisions. “Strickland does not explain how the Constitution requires a new trial for violations of any right to counsel.”

In the end, however, as a practical matter, the majority opinion underscores the importance of filing those notices of appeal.

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?”