The Abortion Case and Criminal Law

The big news in law is, as we all know by now, the Supreme Court’s leaked draft opinion (per Alito, J.) overruling Roe and Casey.  The central holding of the draft is that the Constitution simply has nothing to say about abortion, and therefore that whether and in what ways it should be regulated are matters left to the political process.

CJLF takes no position on abortion, and neither for present purposes do I (a mere guest contributor here in any event).  But there is potentially very important news for criminal law in the draft opinion.

As Justice Scalia once famously observed, the Constitution says what it says and doesn’t say what it doesn’t say. It doesn’t say beans about abortion, end of story. It’s up to democratic not judicial processes.  And if federalism holds the day, the democratic process will produce considerably varying outcomes in the 50 states, some making abortion always or almost always illegal, some permitting virtually abortion on demand, and most in between.

What’s the lesson here for criminal law?  For decades, the Left has been using the courts to manufacture, as “constitutional” rights or requirements, things that the Constitution simply does not address.  Miranda is the most flagrant example of this in criminal law. The idea that a defendant’s statement must categorically be seen as “compelled” in violation of the Fifth Amendment if it is not preceded by warnings  —  a theory the Court simply made up  —  is not only unjustified by any sane reading of the Constitution, but preposterous as a factual matter.  You don’t even need to be out of high school to know that some unwarned  statements will be compelled and some won’t, and that whether warnings have been given is relevant to, but hardly dispositive of, the voluntariness question.

The reason the Left settled upon the strategy of having the judicial branch manufacture one right and another and another for criminal defendants is that it knew it would fail if it tried going to Congress (and its failures are legion, for example, in trying to end qualified immunity, eliminate mandatory minimum prison terms, or ban consideration of “acquitted conduct” at sentencing).  In other words, the Left, which constantly crows about its love of democracy, went the least democratic (but most effective) route it could find, i.e., importuning unelected federal judges to do what Congress wouldn’t.

Some love of democracy, that.

But for however that may be, if the Alito draft holds, there may be a realistic hope that some judicially-manufactured “constitutional” rights may be in for a re-examination by the welcome advent of a Court that actually confines itself to what the Constitution says rather that what those who have failed with their pro-criminal agenda in Congress want it to say.  A re-examination of the Court’s holding in Dickerson, along the lines of the Scalia/Thomas dissent, would be a wonderful place to start.

11 Responses

  1. Douglas Berman says:

    For the record, Bill, the US House this year voted, by a margin of 405-12, for the “Prohibiting Punishment of Acquitted Conduct Act of 2021.” Congress is clearly broken if a bill can get that kind of support in one chamber and not even get a vote in the other one. It is especially comical that you claim to be defending “democracy” in a post in which you sneer at the importance of a jury acquittal given that, as Justice Scalia put matters, the “jury trial is meant to ensure [the people’s] control in the judiciary.” Blakely v. Washington.

    • Bill Otis says:

      Doug —

      “For the record, Bill, the US House this year voted, by a margin of 405-12, for the “Prohibiting Punishment of Acquitted Conduct Act of 2021.” Congress is clearly broken if a bill can get that kind of support in one chamber and not even get a vote in the other one.”

      You know that I always try to be helpful. Here’s Chuck Schumer’s number: (202) 224-6542

      “It is especially comical that you claim to be defending “democracy” in a post in which you sneer at the importance of a jury acquittal given that, as Justice Scalia put matters, the “jury trial is meant to ensure [the people’s] control in the judiciary.”

      It is especially not comical, but unfortunate, that you claim to be a man of the law, but don’t so much as mention that SCOTUS considered this question 25 years ago in Watts and ruled against your position 7-2. In the majority were the aforementioned Justice Scalia and — ready now? — Justice Ginsburg! (Justice Breyer concurred with the majority). Are you wiser or more attuned to justice than they?

      • Douglas Berman says:

        I have urged a Senate vote on the “Prohibiting Punishment of Acquitted Conduct Act of 2021.” If I were to call Senator Schumer’s office, Bill, can I say you share my desire to have this bill brought to the floor for a vote so we can actually see what democracy favors?

        It is amusing you mention Justices Scalia and Ginsburg in your discussion of Watts, since both of them (along with your fav Justice Thomas) called for reconsideration of that misguided ruling in their Jones cert denial dissent in 2013. I do think Justice Breyer, who never has seemed all that much of a fan of democracy, has played a big role in keeping Watts from being reconsidered. I have never thought of you as a big Breyer fan, but if the shoe fits.

        Meanwhile, I do not think there has been a single Justice urging reconsideration of Dickerson or a post-Dickerson bill ever introduced to seek to modify its terms, and yet you are still tiling at that windmill. Watts has had Scalia/Thomas/Ginsburg call for its reconsideration, and a bill to limit acquitted conduct at sentencing passed the House by a margin of 405-12. It seems I am attuned to the justice that Scalia/Thomas/Ginsburg embrace along with 405 member of the current House. You do have 12 folks in the House on your side, however, and maybe also Justice Breyer.

  2. Bill Otis says:

    Doug —

    — If you call Sen. Schumer, please tell him that I hope he’ll enjoy his remaining eight months as “majority” leader, and I sympathize with his inability to hold his own caucus today. Life is tough in this town.

    — Your sleight of hand with Watts won’t be getting too far. You cannot and do not deny that it is the governing law; was decided by a lopsided majority; and takes the long-prevailing view that facts at sentencing need be proven only by a preponderance (unlike facts at the guilt phase). Indeed, not once do you mention the critical difference in standards of proof. If you were a student in your own class, you’d flunk yourself.

    — Gads Doug, why go all the way back to your side’s failure to get cert in Jones nine years ago? Just a bit over seven months ago, in October 2021, you guys were getting all pumped about a case named Osby raising the same issue. How did you do there with the present Court? I think cert was denied without a single dissent, isn’t that right? It might be harder to try to turn that skunking into a victory, but I have to admit that you’re among the most energetic and persistent at trying. And, while I’m at it, how’s defund the police doing these days?

    — I’m not a big fan of Justice Breyer, what with his oddball views of the death penalty, but I’m a moderate fan, since he has a wicked sense of humor and doesn’t pull rank.

    — Lastly, I see that you pass right by the main point of this entry to focus on one minor point. The main point, again, is that the Left is furious about the draft Alito opinion because it signals that there might be a majority that will stick to the text of the Constitution rather than just make stuff up, as the Court did in Miranda (and Roe). I mean, I’m sure you’d agree that the text of the Constitution says nothing and implies nothing about these warnings, which were just taken out of the thin air of policy preferences.

    You would agree with that, no?

  3. Douglas Berman says:

    Because I try to stay in my lane, I am eager to focus on your claims about the text of the constitution, jury trials, democracy and acquitted conduct. Notably, the text of the constitutional actually says nothing about burdens of proof, it speaks only of due process of law (now twice) and of trial by jury (always twice). And yet you are eager to champion Watts, which interpreted due process to allow judges to disregard jury verdicts when finding facts to drive up (then mandatory) guideline ranges under the guideline-suggested civil standard of preponderance. (Notably, SCOTUS has never actually formally “made up” a standard of proof for sentencing, it has only held that reliance on demonstrably false facts violates due process. I suppose your statement of the law does earn a pass, though I have always been an easy grader. )

    Since you dislike courts that “make up stuff” in the Constitution, I hope you will explain whether you accept or rejected the “made up” criminal law constitutional standard of proof beyond a reasonable doubt at jury trials. I suspect that is not your “policy preference” for the heightened burden on prosecutors, so are you inclined to rail against Winship as well as Miranda? Can you explain why your criticism on Miranda does not have at least some force as a criticism of Winship?

    I generally think that proof BRD should be the standard for all sentence-increasing facts about the crime; Watts allows use of a lower standard at sentencing, though I have long thought reflection on the ugliness of Watts influenced Justices Thomas and Scalia to see the problems with anything goes at sentencing approach to procedure and produced the outcomes in Apprendi, Blakely et al. (Notably, it was the quartet of Breyer, Kennedy, O’Connor and Rehnquist always pushing for your approach.) And, just as eventually a majority of Justices understood that McMillan/Harris was bad law after Apprendi/Blakely, I am hopeful they will come around eventually on Watts. (Again, I think Justice Breyer has been a big part of the problem, but we shall see if is departure mares any difference. And, at least in the federal system, the House vote shows that a functioning democracy could take case of the problem, somewhat.)

    But, I fully get you are ever grateful for when the court makes stuff up that makes it easier for the government to punish individuals, even when they have to make stuff up that circumvents the actual (democracy re-enforcing) procedural safeguards in the actual text of the Constitution. I suppose it is not accurate complain about your hypocrisy, since you always embrace the statist position. But I am always eager to highlight that the text of the Constitution and democracy do not always support your consistently statist views on these matters.

    • Doug, wasn’t proof beyond a reasonable doubt well established as part of the process due in criminal cases when the Fourteenth Amendment was adopted? Winship strikes me as an unlikely target for the overruling of “made up” rules.

      I don’t think Miranda/Dickerson is a particularly likely target for complete overruling either. There is something to be said for Dickerson’s stare decisis argument. That doesn’t mean that we can’t make adjustments, though. The English version of the warning to the effect that failure to state a defense upon arrest may be used in rebuttal at trial is better.

      My preferred target is Lockett v. Ohio as explained in the Ohio State Journal of Criminal Law in 2019.

  4. A jury verdict of acquittal is a decision that at least one element of a crime has not been proved beyond a reasonable doubt. A subsequent decision by another fact-finder that the fact in question has been proved by the lower standard applicable in that proceeding does not amount to disrespect of the first jury’s verdict.

    To take one well-known example, a jury in a criminal case found that it had not been proved beyond a reasonable doubt that O.J. Simpson killed Ron Goldman. However, another jury in a civil case found unanimously that it had been proved by clear and convincing evidence that he did, and on that finding it awarded both compensatory and punitive damages to Goldman’s father.

    If we accept that facts used in sentencing need only be proved by a preponderance of the evidence, it seems illogical to preclude such a finding based on an earlier finding that the same facts had not been proved beyond a reasonable doubt.

    • Douglas Berman says:

      I appreciated your two comments, Kent, though they seem to be in some tension. If in fact “proof beyond a reasonable doubt [was] well established as part of the process due in criminal cases when the Fourteenth Amendment,” then why do we think the 14th A ought to be understood to allow a judge to increase a sentence based on a lesser civil proof standard — especially where there is a finding by a jury that proof BRD is not met? (If a civil jury/judge wants to award a civil remedy based on civil rules and standards, that is a different matter.)

      Put another way, I do not think it is clear that Constitution permits using a civil standard of proof to increase criminal punishment. And, even if there might be some doubt on that score, I think it is more worrisome to read the Constitution to allow judges to completely disregard jury findings about a particular fact and increase a sentence based on that fact.

      • Bill Otis says:

        Doug —

        I’d be interested in your response to Kent’s discussion of the OJ Simpson case. If the not guilty verdict in the criminal murder trail (i.e., acquitted conduct writ large) resolves the issue of OJ’s culpability, then your logic compels the conclusion that OJ cannot possibly be held accountable for a gigantic verdict against him for the same conduct in the same jurisdiction in a later proceeding.

        If, on the other hand, the not guilty verdict does NOT resolve the issue of the defendant’s culpability in that trial, why does it do so at anyone else’s trial?

      • I do not think a judge should be allowed to increase a sentence based on a lesser standard. That, in essence, is the Apprendi rule. But when a sentencer (be it judge or jury) is given discretion to choose from sentence options or to fix a sentence within a range, nothing in the text or history of the Constitution requires that the facts informing that choice be proved beyond a reasonable doubt.

        Should the facts the defendant submits in mitigation also have to be proved beyond a reasonable doubt? Unlike the guilt phase, I do not see a compelling reason for an asymmetrical burden here.

  5. Bill Otis says:

    Doug —

    “Since you dislike courts that “make up stuff” in the Constitution, I hope you will explain whether you accept or rejected the “made up” criminal law constitutional standard of proof beyond a reasonable doubt at jury trials. I suspect that is not your “policy preference” for the heightened burden on prosecutors, so are you inclined to rail against Winship as well as Miranda? ”

    I have put up over 2000 posts here and probably at least as many comments on your own blog. Could you show me a single one out of those thousands that justifies what you say is your suspicion that I would “rail” against the BRD standard in Winship?

    Here we have, once again, a great example of your going on offense by just turning things inside out. Not once have I criticized the BRD standard for the guilt phase (a standard adopted by settled law no person outside of an asylum questions), while you acidly and repeatedly criticize the also settled law in Watts, which has never come close to being overruled. But I’M the radical and YOU’RE the guardian of the Constitution???

    Far out!

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