When Do Judges Get to Use Judgement in Interpreting a Statute?
Via How Appealing comes an interesting statutory interpretation issue: in reading a statute, what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended? According to Judge Boudin on behalf of a unanimous First Circuit panel ten years ago, the answer is that the court should intervene when it “is patent that Congress as a whole did not appreciate the great variety and complexity of state provisions that would have to be meshed with the new federal statute or the odd results that would follow.” But according to a decision written by Judge Easterbrook and issued yesterday by a unanimous Seventh Circuit panel, the answer is that the court should intervene only when the “statute is … absurd as written;” that is, if its text does not “parse[ ]” or there is “linguistic garble.” “The canon [of absurdity] is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce.”
The statute at issue in both cases is the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
The statute provides an enhanced penalty of at least fifteen years’ imprisonment for illegal possession of a firearm by a felon if the felon had at least three prior “serious drug” or “violent felony” convictions. “Violent felony” is defined as any violent crime “punishable by imprisonment for a term exceeding one year.” That last phrase, however, is in turn limited by the definition provided in Section 921(20), which states: “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
The question, therefore, is whether a conviction that never removed civil rights to begin with, or impeded the ability to “ship, transport, possess, or receive firearms,” should count as a conviction for purposes of Section 924(e)(1). In United States v. Logan, the Seventh Circuit said “yes.” Logan, the defendant, had “three battery convictions that, though called misdemeanors in Wisconsin, carried maximum terms of three years’ imprisonment,” though they did not remove his right to vote, hold public office, or sit on juries, and there was no restriction imposed on his ability to possess firearms. Nevertheless, the Seventh Circuit held that they qualified as “violent felonies” under the plain language of Section 924(e)(1) and were not excluded by Section 921(20), because “[t]he word ‘restore’ means to give back something that had been taken away,” and as the Second Circuit held in a similar case, “the ‘restoration’ of a thing never lost or diminished is a definitional impossibility.”
The First Circuit, in United States v. Indelicato (Lexis sub. req.), 97 F.3d 627 (1st Cir. 1996), went the other way. The court first noted the legislative history behind the weird exception in Section 921(20):
As originally enacted in 1968, 18 U.S.C. § 922(g)(1) made criminal gun possession by anyone previously convicted of a crime (the predicate offense) punishable by more than one year of imprisonment, but the statute allowed an exception for state misdemeanors punishable by two years or less of imprisonment. 18 U.S.C. § 921(a)(20). In 1983, the Supreme Court held that a predicate offense under section 922(g) is defined by federal law, and that state expunctions of state convictions did not avoid the ban of section 922(g)(1). Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 115, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983).
Congress reacted to Dickerson and like rulings by enacting in 1986 the Firearms Owners’ Protection Act, 100 Stat. 449, which in pertinent part amended section 921(a)(20)’s definition of predicate offenses. The amendment, which remains in effect today, provides that state law defines what constitutes a predicate “conviction” for purposes of section 922(g)(1) and other provisions of the statute. It also excludes convictions that have been “expunged” or “set aside,” or for which the person has been “pardoned” or “has had civil rights restored.” Congress has provided no definition of “civil rights” or “restored.”
The main issue for us is whether the “civil rights restored” provision in section 921(a)(20) protects one who, like Indelicato, never had his civil rights taken away at all.
Judge Easterbrook’s discussion of why the Seventh Circuit declines to follow the Indelicato decision is practically mocking in tone. As he describes it, the First Circuit declined to apply Section 924(e) for two reasons: “(a) it thought the statute silly—for why should someone whose civil rights were never taken away receive a higher federal sentence than a person who lost and then regained those rights?—and (b) no legislative history shows that Congress meant to distinguish between convicts who never lost civil rights and those who lost but regained them.” He dismisses the second point as “a makeweight,” because “[s]tatutes do not depend, for their force, on some statement in the legislative history along the lines of: ‘We really mean it!’” As for the first point:
The Supreme Court insists that statutes be enforced as written even when they seem mistaken or pointless—for it is exactly then that the temptation to substitute one’s judgment for the legislature’s is strongest. [cites] Laws are not “harsh” or “pointless” in any value-free framework; they seem harsh or pointless by reference to a given judge’s beliefs about how things ought to work, which is why a claim of power to revise “harsh” or “pointless” laws elevates the judicial over the legislative branch and must be resisted. See Tyler v. Cain, 533 U.S. 656, 663 n.5 (2001). . . .
Indelicato assumed that judges may correct a legislature’s mistakes and oversights. It did not, however, identify any source of authority to do this . . . . When the first circuit in Indelicato combined what it perceived as an infelicitous enactment with the absence of “We really mean it!” legislative history, it was nodding in the direction of imaginative reconstruction—the idea that a court may implement what it is sure the legislature would have done (had it faced the question explicitly) rather than what the legislature actually did. The Supreme Court has anathematized that approach as democratically illegitimate, for it sets up the judiciary as the effective lawmakers. See, e.g., West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-01 (1991) (calling imaginative reconstruction a “usurpation” that “profoundly mistakes [the judicial] role”); Tafflin v. Levitt, 493 U.S. 455, 461-62 (1990) (“Petitioners . . . insist that if Congress had considered the issue, it would have [adopted a particular rule]. This argument . . . is misplaced, for even if we could reliably discern what Congress’ intent might have been had it considered the question, we are not at liberty to so speculate”).
I find Judge Easterbrook’s dismissive attitude toward the issue here troubling for three reasons. (I don’t know that I ultimately agree with the First Circuit; I just think it’s a hard question.) First, I would have much less discomfort that injustices caused by unforeseen applications could be corrected if Congress easily and frequently revisited statutes. But that does not appear to be the case, and particularly in areas such as criminal law, there are political incentives against making any criminal statute *less* strict, even if it is error-correction. In addition, the rate of such errors may be very infrequent, making it harder to grab legislators’ attention. Second, obviously error-correction by the legislature does nothing for the individual party before the court. Again, this is bad enough in civil litigation, but in the cases here the practical impact is an increase in the minimum prison sentence of at least 5 years.
Third, I just don’t buy the idea that judges are supposed to approach statutory (and constitutional) interpretation devoid of any framework of what is “harsh” and “pointless” and therefore gives rise to a question of whether that is the correct interpretation. Interpretation commonly proceeds in such a fashion. For example, say a law school adopts a rule: “No laptops in the classroom.” Some students are caught studying in a classroom when no class is going on, and they are using their laptops. Have they violated the rule? Probably not; it would seem “harsh” and “pointless” to punish students for using laptops in an empty classroom. The rule makes the most sense in the context of the debate that probably gave rise to it, namely whether laptops *during class* are too distracting and disruptive. Similarly, the First Circuit looked to the debate that gave rise to the “restored rights” exception in Section 921(20), and found it unlikely that such an arbitrary distinction between restored rights and rights that were never taken away was really intended.
As it turns out, and Easterbrook treats this like a mere footnote, 16 days before the Indelicato decision was issued Congress added Section 921(33) to the Act, making it clear that a restoration of rights, and not a misdemeanor that never stripped rights, was to be excluded from the definition of a “crime of domestic violence” for purposes of a similar sentencing enhancement. There may still be an argument that, in the process, it didn’t fix Section 921(20), and may have intended something by the difference; but it at least appears that Congress did not view additional punishment based on crimes that never divested a misdemeanant of civil rights to be “harsh” or “pointless.” But I don’t see how this factual development helps the judge ex ante faced with this sort of dilemma.