Today the Supreme Court handed down a decision that should be in the running for the most interesting case of the Term so far: Dixon v. United States. Reading it will put you in serious law-nerd heaven.
First a bit of background. So-called “substantive” criminal law — the law of what is punishable as a crime — is a statutory field. Although there are a few constitutional issues lurking about, for the most part the law is what the legislatures say the law is. Unfortunately, however, legislatures tend to do pretty poorly when drafting criminal statutes. They don’t think through the issues very carefully, and often leave major questions uncertain. At the state level, the American Law Institute’s Model Penal Code has improved the law tremendously. The MPC annoys the heck out of first-year law students, but it has been widely adopted (at least in part) by many states. At the federal level, however, the MPC hasn’t taken hold: Congress declined to adopt its teachings, and as a result federal criminal law is often unusually messy and disjointed.
The Supreme Court jumped into the fray today with Dixon v. United States, a case that considers the burden of proof applicable to use of the duress defense. Dixon lied in her application to purchase firearms at two gun shows; she was under indictment at the time, but lied about it and her identity to get the gun. At trial for failing a false application, she raised the defense of duress: She claimed that her boyfriend threatened to kill her if she refused to buy a gun for him, and that she only bought the gun because he was making her do it to give to him. The trial judge declined the defendant’s request to have a jury instruction giving the government the burden of proof beyond a reasonable that the defense did not apply; instead, the court granted the government’s request to have the jury read an instriction that the defendant had the burden of proof of the defense by a preponderance of the evidence. The jury convicted, and the Fifth Circuit affirmed.
The question in the case is, what’s the burden of proof for the defense, and where does it come from? The government has to prove all elements of the crime beyond a reasonable doubt, but the Supreme Court has never said that the same rule applies to defenses like duress. And at the same time, Congress has never said a word about the duress defense or what burden of proof should apply to it. It hasn’t said the defense exists, but it hasn’t said it doesn’t exist, either. Federal courts have just filled in these gaps by looking to general background principles of criminal law, which Congress is assumed to have wanted to follow. So the Dixon case raised two questions: First, did the jury instruction on the burden of proof used in the Dixon case violate the Constitution — which the Court concluded it did not — and second, what is the proper burden of proof in the absence of a statute to construe?
The second question is the really interesting one, and I’ll focus on it here. If Congress has never said a peep about this topic, what sources of law should the Supreme Court consult to determine what the law is? Should the Court look at the common law? Federal practice? Criminal law treatises? The Model Penal Code? Or should the Court simply follow whatever the Justices think is the best rule as a matter of policy?
Justice Stevens’ majority opinion cues up the difficulty of the problem quite nicely:
[F]ederal crimes are solely creatures of statute, and therefore * * * we are required to effectuate the duress defense as Congress “may have contemplated” it in the context of these specific offenses, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 491, n. 3 (2001) * * * The offenses at issue in this case were created by statute in 1968, when Congress enacted the Omnibus Crime Control and Safe Streets Act. See 82 Stat. 197. There is no evidence in the Act’s structure or history that Congress actually considered the question of how the duress defense should work in this context, and there is no suggestion that the offenses at issue are incompatible with a defense of duress. Assuming that a defense of duress is available to the statutory crimes at issue, then, we must determine what that defense would look like as Congress “may have contemplated” it.
It’s kind of like debates on Originalism: How do you interpret the original understanding of Congress on a question that the Congress did not consider, and what sources do you look to identify what interpretive method is right? Do you assume that Congress wanted to incorporate common practice at the time, or to match the rules to whatever was common when the issue was decided, or that they wanted the judges to insert the best rule?
Four opinions were filed in the case, and they each took a different approach. The majority opinion by Justice Stevens concluded that the 1968 Congress would have looked to the general practice at the time, which was to use the common law rule that gave the defendant the burden of proof by a preponderance of the evidence. According to Stevens, the inquiry focuses on the state of the law in 1968:
Even though the Safe Streets Act does not mention the defense of duress, we can safely assume that the 1968 Congress was familiar with both the long-established common-law rule and the rule applied in McKelvey and that it would have expected federal courts to apply a similar approach to any affirmative defense that might be asserted as a justification or excuse for violating the new law.
[W]e give no weight to the the publication of the Model Penal Code in 1962. As petitioner notes, the Code would place the burden on the government to disprove the existence of duress beyond a reasonable doubt. See Model Penal Code §1.12, 10A U. L. A. 88(2001) (hereinafter Model Penal Code or Code) (stating that each element of an offense must be proved beyond a reasonable doubt); §1.13(9)(c), at 91 (defining as an element anything that negatives an excuse for the conduct atissue); §2.09, at 131–132 (establishing affirmative defense of duress). Petitioner argues that the Code reflects “well established” federal law as it existed at the time. Brief for Petitioner 25. But, as discussed above, no such consensus existed when Congress passed the Safe Streets Act in 1968. And even if we assume Congress’ familiarity with the Code and the rule it would establish, there is no evidence that Congress endorsed the Code’s views or incorporated them into the Safe Streets Act.
Justice Kennedy offered a different approach in his concurrence. According to Kennedy, Congress should be understood to have left the question open for the courts to decide in light of tradition, scholarship, and experience:
When issues of congressional intent with respect to the nature, extent, and definition of federal crimes arise, we assume Congress acted against certain background understandings set forth in judicial decisions in the Anglo-American legal tradition. See United States v. Bailey, 444 U. S. 394, 415, n. 11 (1980). Those decisions, in turn, consult sources such as legal treatises and the American Legal Institute’s Model Penal Code. See, e.g., United States v. Jimenez Recio, 537 U. S. 270, 275–276 (2003); Salinas v. United States, 522 U. S. 52, 64–65 (1997). All of these sources rely upon the insight gained over time as the legal process continues. Absent some contrary indication in the statute, we can assume that Congress would not want to foreclose the courts from consulting these newer sources and considering innovative arguments in resolving issues not confronted in the statute and not within the likely purview of Congress when it enacted the criminal prohibition applicable in the particular case.
Justice Alito offered a third approach in his concurrence. Alito noted that Congress has been making criminal laws since the Founding without ever addressing the duress defense, and argued that this silence should be read as a presumption that the common law rule applies to all federal crimes, not just the 1968 Act.
Duress was an established defense at common law. See 4 W. Blackstone, Commentaries on the Laws of England 30 (1769). When Congress began to enact federal criminal statutes, it presumptively intended for those offenses to be subject to this defense. Moreover, Congress presumptively intended for the burdens of production and persuasion to be placed, as they were at common law, on the defendant. Although Congress is certainly free to alter this pattern and place one or both burdens on the prosecution, either for all or selected federal crimes, Congress has not done so but instead has continued to revise the federal criminal laws and to create new federal crimes without addressing the issue of duress. Under these circumstances, I believe that the burdens remain where they were when Congress began enacting federal criminal statutes.
I do not assume that Congress makes a new, implicit judgment about the allocation of these burdens whenever it creates a new federal crime or, for that matter, whenever it substantially revises an existing criminal statute. It is unrealistic to assume that on every such occasion Congress surveys the allocation of the burdens of proof on duress under the existing federal case law and under the law of the States and tacitly adopts whatever the predominant position happens to be at the time. Such a methodology would create serious problems for the district courts and the courts of appeals when they are required to decide where the burden of persuasion should be allocated for federal crimes enacted on different dates. If the allocation differed for different offenses, there might be federal criminal cases in which the trial judge would be forced to instruct the jury that the defendant bears the burden of persuasion on this defense for some of the offenses charged in the indictment and that the prosecution bears the burden on others.
Finally, Justice Breyer offered a fourth view in his dissent. Breyer’s approach was something like Kenendy’s. According to Breyer, the quesion should be a question of pure normative policy for the Supreme Court to decide:
I would assume instead that Congress’ silence typically means that Congress expected the courts to develop burden rules governing affirmative defenses as they have done in the past, by beginning with the common law and taking full account of the subsequent need for that law to evolve through judicial practice informed by reason and experience.
Breyer’s opinion then lists a series of policy arguments as to why he thinks the government should have the burden of proof in duress cases.