STATUTORY CONSTRUCTION IN
FEDERAL CRIMINAL CASES:
TRENDS IN THE SUPREME COURT
& THE 4th CIRCUIT
Federal Criminal Practice Seminar
March 15, 2013
Wrightsville Beach
Professor Sara Sun Beale
Duke Law School
Durham, North Carolina
Theories of statutory
interpretation & the
judge’s role
•Beginning in the 1980s, judges
and scholars developed the
approach referred to as “new
textualism.”
Textualism
•The new textualists generally
reject the idea that courts should
seek to divine Congress’s
purpose, focusing instead on the
language that Congress enacted.
Textualism
•Justice Scalia is the most wellknown advocate of textualism.
•He argues his position in his
book A MATTER OF
INTERPRETATION.
Justice Scalia’s textualism
• Justice Scalia argues that a text
should be construed “reasonably”
– not strictly or leniently – to
contain all that it fairly means.
Justice Scalia’s textualism
•Legislative history is unreliable:
• Generally there is no true legislative
intent, and
• Reliance on legislative history
creates an incentive for the creation
of false or contrived evidence of
non-existent intent.
Justice Scalia’s textualism
• Even if constitutional
interpretation is a search for the
original intent of the Constitution,
in the case of statutes we don’t
care about Congress’s intent – just
what the words they enacted
mean.
Justice Scalia’s textualism
•The words of a statute must be
interpreted in context.
•To put statutory language in
context, there are sources to
which courts may look.
Justice Scalia’s textualism
• Sources courts may consult in
putting the statutory language
into context include:
• dictionaries
• canons of interpretation, and
• history.
Purposivism
•Purposivism is at the other end
of the methodological
spectrum from textualism.
•It posits a much broader role
for the interpreting judge.
Purposivism
•Justice Breyer is the most wellknown advocate for this
approach.
•He argues his views in his
books ACTIVE LIBERTY and
MAKING DEMOCRACY WORK.
Justice Breyer’s
Purposivism
An “overly literal reading” can stand
in the way of “help[ing] statutes
match their means to their overall
public policy objectives,” which in
turn translates the popular will into
sound public policy.
Justice Breyer’s
Purposivism
• A wide range of interpretative
tools help judges effectuate
the will of the legislature.
Breyer’s Interpretive Tools
•
•
•
•
•
•
Text
History
Tradition
Precedent
Purposes
Consequences
Justice Breyer’s
Purposivism
One hallmark of Justice Breyer’s
method is his focus on what
scholars have called his
pragmatic consequentialism.
Economic Theories of
Statutory Interpretation
• Scholars have suggested that
considering ex ante and ex post
decision-making is helpful.
• Hard cases can invite ex post decisionmaking that imposes excessive costs
on society.
Economic Theories of
Statutory Interpretation
• Courts act should as faithful agents
reconstructing the legislature’s ex
ante legislative bargains, because this
gives both members of Congress and
interest groups confidence that their
statutory bargains will be respected
and enforced.
Economic Theories of
Statutory Interpretation
• Even if you accept the analogy to
enforcing a contract, this does not
necessarily determine what counts as
the best evidence of a bargain.
• Should one consult the legislative
history or just the statutory text?
How have these
methodological debates
played out in criminal cases?
How have these
methodological debates
played out in criminal cases?
• Are criminal cases different?
• What about, for example, the rule of
lenity?
U.S. v. Santos (2007)
• 18 U.S.C. § 1956 prohibits the use of
“proceeds” of criminal acts for various
purposes.
• The question before the Court was
whether “proceeds” are gross
receipts or net profits.
Scalia’s plurality in Santos
• No textual definition of “proceeds”
and dictionaries show both meanings
are accepted in ordinary usage.
• “Proceeds” has acquired no common
meaning in the Federal Criminal Code.
Scalia’s plurality in Santos
• Context gives meaning, and requires
analysis of the whole statute.
Scalia’s plurality in Santos
• Each reference to “proceeds” in
§ 1956 makes sense with either
interpretation.
• Under either interpretation, all
portions of the statute are coherent,
no provisions are redundant, and the
statute is not “utterly absurd.”
Scalia’s plurality in Santos
• Since the statute is ambiguous, the
rule of lenity requires it to be
construed in the D’s favor.
• No one should be subjected to
punishment not clearly proscribed,
and the rule of lenity puts the weight
of inertia on the party that can best
induce Congress to speak.
Scalia’s plurality in Santos
• Speculating about Congress’s purpose
would raise the “merger” problem.
• If proceeds are gross receipts, nearly
every violation of the illegal-lottery
statute would be punishable by the
much more severe money laundering
statute.
Scalia’s plurality in Santos
• The solutions to the merger problem
proposed by other justices have no
foundation in the text.
• Lenity construes ambiguous statutes
in favor of the D, even if that makes it
harder for the government to prove
its case.
Alito’s dissent in Santos
• Since proceeds can have two meanings,
the Court should look at the context.
• Here, the context is use in a money
laundering statute.
• The leading international money
laundering treaty, the Model Act, and 14
state statutes all define proceeds as gross
receipts.
Alito’s dissent in Santos
• Interpreting proceeds as gross receipts
best promotes the purposes of money
laundering statutes:
• Preventing drug traffickers and others from
enjoying the fruits of their crimes, and
• Preventing the use of dirty money to
promote the growth of illegal enterprises.
Alito’s dissent in Santos
• Interpreting proceeds as net profits
produces perverse results:
• Immunizes successful criminal enterprises
temporarily operating in the red, and
• Creates pointless and difficult problems of
proof.
Alito’s dissent in Santos
• The “merger problem” motivates both the
plurality and concurrence. But
• If there is a problem, it can be addressed at
sentencing, and
• The problem would arise as a result of the
interpretation of another section of the statute
not before the Court and would affect only a
subset of cases.
Breyer’s dissent in Santos
• Agrees there is a “merger problem,” but
there are better ways to address than
interpreting proceeds as profits:
• Require the money laundering and
predicate offense to be distinct to be
punished separately, or
• Address the issue through the Sentencing
Guidelines.
Comparing the approaches
• Scalia’s textual approach limited the
sources; unlike Alito, Scalia did not
consult the treaty, model act, and
state laws, nor did he consider what
might facilitate the general purpose of
the statute.
• In the face of acknowledged
ambiguity, he applied rule of lenity.
Comparing the approaches
• Alito consulted a very wide range of
sources (all of which he found to favor
the government’s interpretation),
including the general purposes of the
statute.
• Justice Breyer concurred in this
opinion, which seems consistent with
purposivism.
Comparing the approaches
• Justice Breyer’s separate opinion is
distinctive in its emphasis on pragmatic
consequentialism.
• We know what Congress was trying to
do. What’s the best way to get there?
• No special emphasis on the text or ruleof-lenity concerns.
Favorable Canons
• From the defense perspective, the
rule of lenity is the most
favorable (and most generally
applicable) canon of construction.
Favorable Canons
• Application of the rule of
constitutional avoidance (CRS at
21) will also generally narrow the
interpretation of a statute (though
the statute may then survive a
constitutional challenge)
Favorable Canons
• Ejusdem generis (CRS Report at 10) will
also generally benefit the defense,
because it tends to limit the interpretation
of statutory terms. It instructs that when
terms appear in a series, general words
are to be read as applying only to other
items akin to those specifically
enumerated.
Favorable Canons
• Extraterritorial application is
disfavored.
Interpretative principles:
mens rea when statute silent
• Many cases suggest that the courts will
read in a mens rea requirement.
• Morissette v. U.S. (1952) held that when
Congress codified a common law offense it
would be presumed to have intended to
carry forward the common law mens rea
requirement.
Interpretative principles:
mens rea when statute silent
• Staples v. U.S. (1994) recognized the
“background rule[]” that requires some
mens rea, noting it is the rule not the
exception in Anglo-American law.
• Strict liability is “disfavored” and some
expression of intent, express or implied, is
necessary to dispense with mens rea.
Interpretative principles:
mens rea when statute silent
• In Staples, Justice Thomas wrote that the
Court has taken “particular care” to avoid
dispensing with mens rea when that
would criminalize an broad range of
apparently innocent conduct (citing
Liparota (1985).
Interpretative principles:
mens rea when statute silent
• In Staples, Justice Thomas suggests, but
finds it unnecessary to adopt, a per se rule
that -• “absent a clear statement from Congress
that mens rea is not required, we should
not apply the public welfare offense
rationale to interpret … any felony offense
as dispensing with mens rea.”
Interpretation when statute
includes a mens rea term
• Flores-Figueroa v. U.S. (2009) states
another general rule that can be
beneficial in a wide range of cases.
• The question was whether the mens
rea term “knowingly” in the
aggravated identity theft statute, 18
U.S.C. § 1028A applied to all elements
of the statute.
Flores-Figueroa (Breyer)
• “In ordinary English, where a
transitive verb has an object, listeners
in most contexts assume that an
adverb (such as knowingly) that
modifies the transitive verb tells the
listener how the subject performed
the whole action, including the object
as set forth in the sentence.”
Flores-Figueroa (examples)
• “If we say someone knowingly ate a
sandwich with cheese, we normally
assume that the person knew both
that he was eating a sandwich and
that it contained cheese.”
Flores-Figueroa (Breyer)
• Courts generally interpret statutes in
a manner consistent with ordinary
English usage.
• “… courts ordinarily read a phrase in a
criminal statute that introduces the
elements of a crime with the word
‘knowingly’ as applying that word to
each element.”
Flores-Figueroa (Breyer)
• Rejects contrary arguments based on
overall text of the statute and
legislative history.
Flores-Figueroa (Breyer)
• Rejects argument that proving
knowledge will be too difficult:
concerns about “practical
enforceability are insufficient to
outweigh the clarity of the text.”
Flores-Figueroa (Scalia)
• Notes disagreement with normative
description that mens rea term
ordinarily applies to all elements and
distinguishes Staples (where no mens
rea was stated) from a statutory text
that carefully limits mens rea.
Flores-Figueroa (Alito)
• “It is fair to begin with a general
presumption that specified mens rea
applies to all the elements of an
offense, but … there are instances in
which context may well rebut the
presumption.”
Flores-Figueroa’s value
• Seven members of the Court agree
that courts should begin with at least
a presumption that a stated mens rea
term applies to all elements of any
statute.
• Breyer’s opinion (which garnered 6
votes) seems to go even further than
a presumption.
The Fourth Circuit
• How does it compare to other
circuits?
• Unfortunately, my research does not
permit me to do a close comparison
of use of different methods of
statutory interpretation, use of
canons, etc.
Can compare reversal rates
• For criminal appeals FY ending
9/30/2012:
• National reversal rate : 7.0%
• Range 15.8% (7th Circ.) to 1.3% (10th
Cir.)
• 4th Circuit reversal rate: 6.5%
Interpretative method
4th Circuit cases
• Would like to acknowledge the work
of research assistants Emily May,
Logan Starr, and Eric Mattingly (all of
the Duke Law class of 2013), who
identified and coded the cases in the
handout.
Interpretative method
4th Circuit cases
• Not surprisingly, most opinions at
least begin with the text (and many
end there).
• In about 25% of the cases my
research assistants coded, the court
relied on a dictionary.
Interpretative method
4th Circuit cases
• Some opinions go beyond the text to
consider purposive elements, i.e.,
intended effect of the statute (which
often involves use of legislative
history).
Interpretative method
4th Circuit cases
• Other opinions (coded as
“prudential”) focus on the potential
consequences of a proposed
interpretation, for example, applying
the canon of absurd results.