Mimesis Law
3 June 2020

Justice Clarence Thomas: Champion of Liberty for One Weird Right

June 24, 2016 (Fault Lines) — Justice Clarence Thomas does not much care for the Confrontation Clause—he thinks most conversations between citizens and police lack the requisite solemnity to be testimonial. He’s not a fan of the exclusionary rule either—maybe he thinks we should go back to civil claims for 4th Amendment violations. He does not give a damn about the right to remain silent. But he is deeply, passionately in favor of the constitutional right to have a jury decide whether a defendant has committed previous crimes.

Weirdly so, in fact. On June 23rd, he published yet another in a series of concurrences and dissents from denials of cert attacking a rule that allows judges, rather than juries, to determine whether a defendant has committed the crimes for which he has previously been convicted.

In Mathis, a man was accused federally for being a felon in possession of a firearm. It’s not clear how exactly he got unlucky enough to be placed in the federal cross-hairs on the charge, but the sentences looked tough. He had committed five burglaries in Iowa, and that meant that he would do a minimum of 15 years for the crime.

But that’s where things get tricky. To count as a “burglary” under the three strikes statute the feds were using, known as the ACCA, the crime must involve breaking into a structure. Iowa has the same rule, but then it goes about defining structure in the counterintuitive way that legislatures sometimes do to include boats, houses, cars and planes.

So when Mathis was getting ready for sentencing, the trial court had to figure out whether it was going to treat him as a three-striker under the ACCA and throw the book at him, or give him a lesser (but likely still terrible) punishment. And the only question at this point is whether Iowa’s statute is “divisible,” which would let the government dig into the charging documents and figure out whether Mathis had burglarized homes, or singular, in which case he would get a relatively lenient sentence.

The trial court decided that the statute was divisible, looked at other records that showed Mathis had been burgling homes, and gave him the fifteen years. The Supreme Court looked at the issue, disagreed about the statute, and reversed. In short, it’s all a bit technical.

But that hasn’t stopped Thomas from penning yet another push for the Supreme Court of the United States to reverse a much earlier decision, from 1998, which allows a judge to determine whether a defendant has previously committed crimes:

Consistent with this view, I continue to believe that depending on judge-found facts in Armed Career Criminal Act (ACCA) cases violates the Sixth Amendment and is irreconcilable with Apprendi. ACCA improperly “allows the judge to ‘mak[e] a finding that raises [a defendant’s] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.’”

Justice Thomas has got a point here. In theory, elements that enhance a defendant’s sentence as a matter of law are supposed to be found by a jury. So, for instance, in 2013, the Supreme Court said that if there was a penalty enhancement for “brandishing” rather than merely “carrying or using” a firearm during a crime of violence, the judge couldn’t come back after the fact and find brandishing if the jury didn’t.

If having previously committed crimes gets you a penalty enhancement, then there’s a strong Sixth Amendment argument for requiring the jury, rather than the judge, to do the necessary fact-finding. So, for instance, a jury would be able to constitutionally look at the facts of Mathis’ earlier convictions and say, one way or the other, whether he had been robbing “structures” (hint, he definitely was).

But of all the issues to take up the sword for criminal defendants, this is probably among the least helpful, as even Justice Breyer has pointed out. Because what criminal defendants would get, if Justice Thomas won the day, is the assurance that in every criminal trial, the fact that they had previously committed a bunch of felonies would become an element.

And even if you, say, split up the trial so that you had to be convicted of everything else before the jury got to previous crimes stuff, you’d still risk the jury seeing “previous felony” on the indictment and thinking to themselves “what are the odds they got it wrong twice?!?”’

The current state of affairs is a bit of a boon to criminal defendants. Juries typically don’t see previous crimes, and then, if there’s an error in finding the elements of those prior felonies, the defendant might not get treated as a recidivist. But if the court ever actually ruled that there is a Sixth Amendment right to jury finding on the previous conviction, that mistake would never happen again. It’s only the Supreme Court’s wooliness that makes them useful here.

That’s not to say I disagree with Justice Thomas. He’s taking a principled stand on a clear constitutional principle. It’s just, if he was going to pick an issue to stand tall on, did it have to be the one that criminal defense attorneys kind of hope they never win?

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