“Overcriminalization Week” at SCOTUS

Originally published at National Review by Jonathan Keim | 4/19/15

Samuel J. Johnson v. US, McFadden v. US, Horne v. Department of Agriculture

I hereby declare this to be “Overcriminalization Week” at the Supreme Court. Every one of the cases scheduled for argument has some relationship to several issues in the overcriminalization debate I pointed out a couple weeks ago.

Monday’s argument in Johnson v. United States concerns whether possession of a forbidden firearm (a short-barreled shotgun) counts as a “violent felony” under the Armed Career Criminal Act, which, if part of a defendant’s criminal history, triggers a mandatory minimum. This will be a re-argument of a case argued last November. After the case was submitted, the Court ordered additional briefing on whether the residual clause (“otherwise involves conduct that presents a serious potential risk of physical injury to another”) is unconstitutionally vague.

On Tuesday, the Court will hear argument in McFadden v. United States, which is about what mens rea is required to convict a defendant for distribution of a controlled substance analogue. Some controlled substances were initially identified by a schedule in the text of the relevant statute, which is updated through notice-and-comment rulemaking. The list of analogues is not published, however, so each case goes to a jury to decide whether the alleged analogue is, in fact, an analogue.

Wednesday’s case considers “takings” in Horne v. Department of Agriculture. It’s a bit removed from typical overcriminalization cases, but the issues are clearly relevant to discussions about asset forfeiture and property rights. The U.S. Department of Agriculture currently imposes regulations requiring raisin handlers to skim a portion of the handled raisins and give them to the government. The three questions presented are (1) whether the “categorical duty” to pay just compensation at the time of the physical possession applies only to real property and not personal property; (2) whether the government can get out of the duty to pay by reserving part of the property for the owner; and (3) whether conditioning the ability to engage in commerce on relinquishment of specific property is a per se taking. Arguing for the petitioner will be legal scholar and former appellate judge Michael W. McConnell.