Lee Malvo is brought into court.Davis Turner / Reuters

Big-agenda, partisan issues—the census, reapportionment and gerrymandering, the Second Amendment, abortion—are bearing down on the Supreme Court like a ship with black sails. I am not optimistic that a majority will defy Republican orthodoxy on any of these—and if that is correct, the Court will emerge next spring as both a very live political issue and a shadow of its former self.

Not every case is an agenda case, though. On Monday, the Court granted certiorari in four new criminal-justice cases that, by and large, lack a strong partisan valence. These cases will involve the Court doing, well, you know, law, and in particular, cleaning up some loose ends of its criminal jurisprudence.

Did I mention that they are really, really interesting?

The four cases test:

  • Whether a state can make it a state crime for an undocumented immigrant to use a stolen Social Security number that has been used to find a job;
  • Whether a state can simply abolish the insanity defense in criminal cases;
  • Whether a state jury can convict a criminal defendant by a vote of 11–1 or 10–2, rather than unanimously; and
  • Whether Lee Boyd Malvo, one of the most infamous multiple murderers in American history, must receive a new sentencing hearing because he was a juvenile at the time he participated in the Beltway sniper attacks that left 10 people dead in 2002.

Let’s start with the immigration-crime case. Kansas v. Garcia is a test of statutory language in the Immigration Reform and Control Act (IRCA) of 1986, the last truly comprehensive immigration-reform statute. Among its other effects, IRCA is why, when employees begin a new job, they must file a federal I-9 form attesting that they are American citizens—and attaching documents such as a birth certificate or passport to prove that the attestation is true.

The three defendants in Garcia are undocumented immigrants. They used other people’s Social Security numbers on I-9s when they found work in Kansas, as well as on Kansas state documents required to file taxes or rent housing. Kansas authorities prosecuted all three under state “identity theft” statutes that prohibit use of the documents or identifying numbers of another person to commit fraud or “obtain any benefit.”

At trial, the defendants pointed to the section of IRCA that imposed the I-9 requirement. That section says that the I-9 form, and “any information contained in or appended to such form,” can be used only to enforce specified federal crimes. That meant, they argued, that federal law “preempts” state laws seeking to punish any use of the “information” provided by a worker, even if false. The state’s response was that the language covers only use of the information on an I-9 form itself; it can’t, Kansas said, be read to immunize a worker who uses the same information on a separate form to pay state taxes, gain a driver’s license, or do other business with the state.

Federal preemption is a dense subject. Congress has certain enumerated powers under the Constitution. When passing laws under those powers, it may take specific areas out of state jurisdiction altogether. It does this by saying, “This law preempts state law” (explicit preemption), or by passing a statutory scheme that either directly conflicts with a state statute or is so comprehensive that it “occupies the field” (“implied preemption”). The Kansas Supreme Court concluded that IRCA explicitly forbids states to penalize the use of the same information. That reading isn’t nonsensical; one purpose of IRCA was to make it easier for undocumented immigrants to comply with the law without fearing prosecution. In its appeal to the Supreme Court, however, Kansas points to language in the same section of IRCA that says the statute preempts all state laws punishing employers for any errors on their workers’ I-9 forms. That language, Kansas argues, omits state or local laws punishing the employees themselves.

The U.S. government has filed an amicus brief asking the Court not to find “explicit preemption” in the statute’s language. That reading, it argues, makes no sense: “On respondents’ logic, Kansas could prosecute a U.S. citizen who presents a stolen driver’s license for identity theft even if he also appended that stolen license to his I-9, but a state prosecution of an unauthorized alien in the same position would be expressly preempted.” It asks the Court to go further and hold that the IRCA section doesn’t “implicitly” preempt state laws either, and to avoid any broad constitutional ruling on federal immigration power and state law.

The stakes in the case are fairly high; a green light for this statute would create pressure to pass similar statutes elsewhere.

Kahler v. Kansas also concerns a Kansas statute—one that in essence abolished the age-old “insanity defense” to a criminal charge. For more than half a millennium, English and American courts have held that “insanity” (now a legal, not medical, term) negated a defendant’s criminal responsibility; by the 19th century, that term had been defined as a mental disease that rendered the defendant either unable to understand “the nature and quality” of what he was doing (thinking the victims were actually haystacks rather than humans, for example) or unable to discern that his actions were wrong. (Some courts used to explain this prong by saying that if defendants would still have committed the crime with a police officer standing nearby, they were legally insane—if not, not.)

That defense fell into some popular disrepute after John W. Hinckley, who attempted to assassinate President Ronald Reagan in 1981, was acquitted for reasons of insanity. Since then, legislatures have experimented with ways of cutting back on the traditional rule. Kansas went further than most. In 1996, its legislature passed a law eliminating the defense entirely—unless the defendant was able to show that he or she was so mentally impaired as to be unable to form the “mental state” necessary to violate the law. A defendant unable to form the “intention” to kill could not be convicted, but one who could “intend” to shoot or kill could be, regardless of how distorted the subjective reasons for doing so.

James K. Kahler, the petitioner in this case, went to his ex-wife’s grandmother’s house on Thanksgiving 2009 and killed the grandmother, his ex-wife, and the couple’s two daughters. At trial, his lawyers offered evidence that he was suffering from major depressive and obsessive-compulsive disorders, among others. A defense expert testified that Kahler “felt compelled” to kill and was, for that period, “completely out of control.”

That defense might or might not have satisfied a jury under the old statute, but in Kahler’s case, the jury was permitted to decide only whether Kahler had the intent to kill; they concluded he did and sentenced him to death. The state supreme court rejected his constitutional challenge to the insanity law. Now his lawyers ask the Court to hold that blocking a traditional insanity defense violates the Eighth Amendment’s ban on “cruel and unusual” punishment.

Besides Kansas, three other states—Idaho, Montana, and Utah—have abolished the insanity defense completely; a fourth, Alaska, has truncated the defense so as to allow conviction even if a defendant didn’t understand right from wrong at the time of the crime. In seven others—California, Colorado, Louisiana, Minnesota, Mississippi, Nevada, and Washington—courts have suggested one way or another that the Constitution requires courts to allow such a defense. The “no insanity” states are therefore outliers, and the cert. grant suggests there’s some desire among the justices to bring them to heel. But only four were needed for the grant; a decision for Kahler will require five.

It seems likely that the Court granted cert. in the next case, Ramos v. Louisiana, to reverse. The issue in Ramos has been mooted many times since a widely reviled 1972 Supreme Court decision called Apodaca v. Oregon.

The decision in Apodaca is a shambles. Four justices argued that the Sixth Amendment didn’t require unanimous juries at all, in either state or federal trials; four others wrote that the amendment did require unanimous juries in both state and federal trials. Justice Lewis F. Powell Jr., relatively new to the Court, wrote a bizarre opinion suggesting that the amendment did require unanimous juries in federal trials but that, even though the amendment applied to the states by virtue of the Fourteenth Amendment, it somehow applied in a limited form that did not require unanimous verdicts in state cases.

Nobody today thinks that Powell’s rule makes any sense, but both Oregon and Louisiana have continued to apply their jury rules, and dozens of defendants have begged the high court to revisit the issue. Next term it will. (Louisiana’s voters last November approved a referendum imposing a unanimity requirement for trials beginning on January 1 of this year. The state argues that this moots the case, but a lot of people already in prison in Louisiana think they should have the benefit of the unanimous-jury rule, and will do more hard time if they don’t get it.)

Evangelista Ramos was convicted of second-degree murder by a Louisiana jury in 2016. The jury split 10–2 after hearing mostly circumstantial evidence. After the conviction, Ramos’s appointed counsel argued on appeal that the evidence was insufficient, but in a separate brief, Ramos, proceeding without a lawyer, raised the unanimous-jury issue. The state appellate courts rejected his brief.

Then a Louisiana criminal-justice reform nonprofit called the Promise of Justice Initiative filed a cert. petition for Ramos. On Monday, the U.S. Supreme Court agreed to take up his case. Ramos’s new lawyers cite historical evidence that the non-unanimous-jury rule was adopted in 1898 by a state constitutional convention called with the express purpose of, as the president of the convention put it, “establish[ing] white supremacy in this state.” This evidence, they suggest, shows that the non-unanimous rule was put in place precisely to prevent minority jurors from blocking a white majority’s decision to punish black defendants.

The Court has recently shown some enthusiasm for decisions that the Fourteenth Amendment “incorporates” all the provisions of the Bill of Rights. In 2010, it held that the Second Amendment “right to bear arms” applies full force against the states; last month it reached the same conclusion about the “excessive fines” clause of the Eighth Amendment. Taking down the embarrassing Apodaca rule may be part of that long-term judicial project.

Finally, in Mathena v. Malvo, the Court will decide whether Lee Boyd Malvo, one of the two Beltway snipers, is entitled to a new sentencing procedure. Malvo, who was 17 at the time, roamed the highways of the District of Columbia and Maryland, along with John Allen Muhammad, a quarter century his senior; the two randomly shot and killed 10 people at a distance with a high-powered rifle. Malvo was tried and, in 2004, sentenced to life in prison without parole; Muhammad was executed by Virginia in 2009.

However, in a 2012 decision called Miller v. Alabama, the Supreme Court decided that, in most cases, a mandatory “no parole” sentence violates the Eighth Amendment rights of defendants who were underage at the time of their crimes. Because children can change so much as they mature, the Court reasoned, such prisoners are entitled to a chance to show that they might, someday, be safe to release on parole—and an automatic no-parole sentence denies them that chance. Then, in 2016, in Montgomery v. Alabama, the Court announced that the Miller rule was retroactive. That meant courts must apply it to state cases of defendants who were already convicted, but were seeking review of their sentences.

Malvo sought such review in federal court in Virginia. A federal district judge held that he was entitled to a new sentencing procedure, and the Fourth Circuit affirmed. Virginia had argued that it actually was a “discretionary” sentence—since under long-standing Virginia rules, the trial court could have suspended some or all of Malvo’s life term. The Fourth Circuit concluded that the judge who sentenced Malvo believed that he had no such discretion.

But even if the Virginia rule made the sentence discretionary, the appeals court argued, the Montgomery decision required setting it aside. That’s because, the court said, Montgomery held that a no-parole sentence can’t be handed down unless the sentencing judge specifically finds that the defendant’s “‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient immaturity of youth.’”

It’s hard to imagine that the justices burn with compassion for Malvo (most of them were living in the region in 2002, when everyone was terrified of being shot at the gas pumps). But the high court almost had to take this case, because the Fourth Circuit’s reading of Montgomery directly conflicts with the Virginia Supreme Court’s. The Virginia court reads the decision to apply only to mandatory sentences—rendering the need for a judicial finding of “incorrigibility” unnecessary. The prospect is that prisoners who appeal to the state court will be turned down under its rule, then immediately petition the federal courts—and win. Something has to give.

All together, these cases show a Court trying honorably to play its role as supervisor of the criminal-justice system—and it may be poised to make things better. In a season of dread, Monday’s order provides reason to hope that some small good news may be on the way.

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