Legal Docket – Legal or not?

MARY REICHARD, HOST: It’s Monday morning and time to get back to work for The World and Everything in It. Today is the 17th of February, 2020. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Real quick, before we get going, two bits of housekeeping.

You heard at the beginning of the program one of my star students two years ago at World Journalism Institute. Let that be a reminder that enrollment is now open for our May WJI course. Deadline’s coming up: March 27th. So a little over a month, and this application will take some doing, so don’t put it off. Maybe you’re an aspiring journalist. Maybe you know an aspiring journalist. We want to help. Go to for the particulars. It’s a great program.

REICHARD: Housekeeping No. 2. Two months of WORLD Magazine for free! If you are a subscriber and you have a friend, colleague, or family member who might really benefit from WORLD as you have, tell us who it is (or who they are—there’s no limit on the number) and where to send this free trial. Visit Very simple. No credit card. This is on the house, two months free.

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REICHARD: All right. Good deal.

Well, we are midway through the current term of the U.S. Supreme Court. So far, the court’s accepted 69 cases for review of the merits of each. It’s heard arguments in 39 of those cases, and issued four decisions. 

The court returns next week after having taken a month-long break from hearing oral arguments. All of which tells me we’re on the brink of decisions starting to come in fast and furious.

EICHER: Now, while the court’s been on break, you’ve not been, and we’ve used the past several weeks to get caught up on arguments to this point. So after today’s Legal Docket and next week’s, if you’ve followed along with us since the current term began in October, you’ll have heard something about every single case argued so far.

REICHARD: Yeah, and that’s the goal of Legal Docket: to help you become conversant with the workings of the judicial branch of our government. We live in a Republic, the saying goes, if you can keep it. Meaning, it’s up to the citizens to keep it, and you can’t keep what you don’t understand.

EICHER: And as journalists in a republic, we have constitutionally protected freedoms because the founders thought it crucial to the maintenance of the republic to promote a well-informed public. 

So how about we get at the task?


I’m doing just one case today, because it’s both complicated and interesting: It’s about repeat offenders, recidivists. And the statute in question is itself a bit of a repeat offender at the high court, in that it comes up again and again.

The federal law is called ACCA, The Armed Career Criminal Act. 

What ACCA does is apply a longer prison sentence to felons who repeatedly commit crimes with a firearm. And by “repeatedly” I mean three or more prior convictions for certain crimes.

One of those crimes is a “serious drug offense.” Felons keep challenging this part of ACCA because the terminology is, well, loosey-goosey, or maybe to quote the late Justice Scalia: legalistic argle-bargle.

EICHER: You can’t argue with Justice Scalia. Well, you can. You’re just likely to lose.

How about I try to paraphrase the pertinent language of ACCA. Listen carefully to identify the loosey-goosey part. 

ACCA says a “serious drug offense” includes, quoting here from the statute: “an offense under state law, involving the manufacture, distribution, or possession with intent to manufacture or distribute a controlled substance … for which a maximum term of prison of 10 years or more is prescribed by law.”

As often happens, it’s one word causing the trouble in this case: the word “involving.” Meaning that, under ACCA, a serious drug offense is one that “involves” all of these verbs: make, distribute, possess.

REICHARD: That’s the law part of this case. 

Now for the facts. 

A man in Florida named Eddie Lee Shular racked up six convictions for possession and sale of cocaine. His lawyer argues none of those count as a “serious drug offense” under ACCA. That’s because Florida law and federal law differ on an element of the crime. 

Federal law requires that criminal intent be found. In legal parlance, mens rea. Latin for “guilty mind.” 

But Florida law doesn’t require a court to find Shular had mens rea

Now, follow Shular’s thinking here. ACCA’s use of the word “involve” implies a “guilty mind.” But because Florida courts didn’t find that he had a guilty mind, didn’t have to, then his convictions can’t count for purposes of ACCA. 

So, the lawyer argues his client can’t be hit with that enhanced prison term.

Justice Samuel Alito wasn’t buying it. This is quite an exchange:

ALITO: In these cases where  your client was previously convicted of a Florida drug offense, did he go to trial or did he plead guilty?

SUMMA: No, he pled guilty, Your Honor. 

ALITO: All right. So in all those cases, he pled guilty. He could have raised an affirmative defense — I didn’t know  what this was, I didn’t know that it was cocaine — but he didn’t do that. 

SUMMA: No, he didn’t. But as far as the categorical approach is concerned, it is not universal in the Florida law that convictions require a — a  finding of guilty knowledge. 

ALITO: I — I look forward to every new ACCA case because the — the distance between the law and the reality gets bigger and bigger. So here we have somebody who has, what, six prior convictions of either distribution or possession with intent to distribute? 

SUMMA: Yes, sir — yes, Your Honor.

ALITO: He is in a strange situation, because he keeps selling a substance, which he thinks is legal and cheap, and, darn it, every single time it turns out actually to be something that is expensive and illegal. He just keeps — How does this happen to him?

SUMMA: I don’t know how it happens to him …

… Summa going on to argue that he isn’t trying to convince anyone that his client acted without guilty knowledge. The point is that Florida courts did not find that he knowingly handled a controlled substance.

It’s not appropriate, then, for the Supreme Court to presume he did, just to fit his crime under ACCA rules and impose more prison time.

Some unusual alliances seemed to become apparent during the argument. Justice Ruth Bader Ginsburg seemed to align with Justice Alito.

GINSBURG: What about knowing what you’re selling? In other words, doesn’t the state have to prove that it was cocaine that was being sold, not sugar?

SUMMA: No, Your Honor. The Florida law is so broad that even the defendant who does not know the substance that was delivered or sold is still guilty.

GINSBURG: … I’m  talking about the actuality of the situation. People in other states who did exactly what this defendant did would get the ACCA enhancement. 

SUMMA: But the Florida statute does not involve the same conduct because the the conduct in the Florida statute does not include a guilty knowledge.

On the other side, the federal government says that’s the wrong analysis.

Here’s Jonathan Bond, assistant to the Solicitor General, laying out how Summa’s approach would drag down the entire system.

BOND: Petitioner’s contrary approach would require courts to construct a complete generic version of each offense based on a 50-state survey of laws from three decades ago and then compare that generic analogue to a particular state’s offense at a particular moment in time to see if they match in every respect.

Bond argued the ACCA plainly encompasses state law offenses. 

That’s the way courts analyze other sorts of crimes for ACCA purposes. So why not apply that same analysis to serious drug offenses?  That’d be the end of these constant challenges on this aspect of ACCA. 

Listen to this exchange with Justice Alito and Bond, again for the government. He mentions the term “recidivist statute.” Meaning, as we said earlier, a law designed to punish repeat offenders.

BOND: It’s very unlikely that in a recidivist statute like this, where Congress is only imposing this enhancement for those who have multiple past convictions, the Congress was worried about the unlikely scenario where a person repeatedly sells an illicit substance believing it to be innocent or believing it not to be a controlled substance.  We think that’s just not a plausible understanding of what Congress was getting at here. 

ALITO: … under the federal scheme the knowledge of the illegal nature of the substance is almost always inferred from the defendant’s conduct? It’s not generally based on direct evidence; isn’t that right? 

BOND: Yes, that’s right. 

A bit of additional background on ACCA: Congress enacted it in 1984 during the Reagan administration. The concern was that a very small percentage of repeat offenders were committing a disproportionate number crimes. So to deter that behavior, it made sense to lengthen penalties for those people who commit “violent felonies.”

That phrase has been challenged repeatedly in court. The Supreme Court decided it doesn’t include drunk driving, or purse snatching that involves only “slight offensive touching.” 

Yet other aspects of ACCA have been struck down as too vague. And now the courts are working out what “serious drug offense” means.  

Justice Brett Kavanaugh got down to basics and reminded everyone of the original purpose of ACCA.

KAVANAUGH: The point of the statute is to tell people who have these prior convictions not to possess firearms?

BOND: Exactly.

Still, several justices of different ideologies worried about government overreach. That theme comes up often at the Supreme Court, a thought that lurks in the background of many different legal disputes. 

Listen to Justice Neil Gorsuch:

GORSUCH: … forget about Florida law for a moment. The word “involves.” I think we would both agree is a pretty broad word.  Right? Everything in the world pretty much involves everything else, at some level of connection … what do we do about the fact that this statute would, at least possibly, capture a state law that had a draconian penalty for delivering a drug without knowing what it is? “Involves” would seem to capture that.

Bond answered the way around that is for a defendant to raise an affirmative defense. Such as, “I did this, but I didn’t know the substance was illegal.” Then a jury could decide whether that’s plausible.

I think the government will score a win here, if the questions inform which way at least five justices lean. The Armed Career Criminals Act may well expand in scope.

And I’m sure we haven’t seen the last of ACCA with this case.

And that’s this week’s Legal Docket.

(AP Photo/Mark Tenally) The United States Supreme Court is seen in this general view, Monday, Jan. 27, 2020, in Washington, DC. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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