The Supreme Court Just Showed a Way Forward on Criminal Justice Reform

Breyer amid the audience assembled for the State of the Union address.
Justice Stephen G. Breyer during the State of the Union address in the chamber of the U.S. House of Representatives on Jan. 30, 2018, in D.C. Win McNamee/Getty Images

In a little-noticed case, the Supreme Court on Friday held 7–2 that undocumented immigrants charged with possessing firearms must know their unlawful status to be convicted of a crime. And while this might seem like an issue of narrow semantics, Justices Samuel Alito and Clarence Thomas’ vigorous dissent suggests a broad array of implications, including the release or retrial of some of the many people convicted each year for violating federal firearm possession laws.

The facts of the case are as follows: Hamid Rehaif came to Florida, flunked out of school, and overstayed his student visa. Then he went to a firing range and shot two guns. The federal government tried him for “possessing firearms as an alien unlawfully in the United States,” which carries up to a 10-year sentence for those who “knowingly” violate it.

At trial, one central question emerged: What did Rehaif have to know to “knowingly” violate the statute? The defense argued that Rehaif had to know that he was using a firearm and that he was no longer legally in the United States. But the trial court told the jury that Rehaif’s knowledge of his immigration status was irrelevant. All the government need prove was that Rehaif knew he was holding a firearm. Its burden lifted, the government prevailed and Rehaif was sentenced to 18 months in federal custody before his deportation.

Rehaif appealed to the 11th Circuit, arguing that there is a long-standing presumption that the government is required to find intent for each and every element of a crime and relying heavily on a Neil Gorsuch dissent from his time at the 10th Circuit. But the 11th Circuit disagreed, holding that possession of a firearm was just one of those laws, like statutory rape or bigamy, that didn’t require the defendant to know his own status or that of his victim. Central to the 11th Circuit’s analysis was that no court had held that a defendant had to know his immigration status in such gun cases and that Congress had not revised the law to require it.

SCOTUS granted cert and reversed. Justice Stephen Breyer, writing for the majority, found that federal courts had given too little weight to the “presumption of scienter,” a rule of interpretation that suggests a court find specific intent elements even when Congress doesn’t bother to write them down. That presumption is particularly strong when, as here, some general intent requirement is written and the penalties for violating the law are harsh.

For its part, the government argued that requiring proof that defendants know their legal status to demonstrate the offense was tantamount to allowing “ignorance of the law” to excuse bad conduct. But here, the question wasn’t whether the defendant knew whether it was illegal for people without status to possess firearms; it was whether the defendant knew that he was one of those people without status. Without that distinction, even someone brought here as a child who’d never had reason to question his legal status could be prosecuted.

Breyer also pointed out that most of the case law analyzing the mens rea requirement of the statute was written before Congress added the word knowingly to it, in 1986. Courts normally assume that when the legislature changes a word in a statute, that change is meaningful. In other words, the 11th Circuit couldn’t claim congressional inaction about those earlier court rulings when it explicitly added an intent requirement. On remand, the trial court will now have to decide whether the incorrect jury instruction was harmful enough to require a new trial.

Alito, for his part, began his and Thomas’ dissent by reciting some of the case’s more unsavory facts. Quoting dismissively from the majority opinion, Alito writes that Rehaif’s case was not that of the “heartless prosecution ‘of an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status.’ ” No, Rehaif was one of those sinister individuals who overstayed a visa, spent lavishly at a hotel, and asked for a room facing an airport, facts so obviously damning that Alito felt no need to explain why they might make this defendant unsympathetic.

Alito further points out that federal law strips the fundamental right to bear arms from a wide variety of unpopular minorities including felons, anyone who uses or is addicted to illegal drugs, “mental defectives,” people subject to restraining orders, or those convicted of domestic violence. And hundreds of people every year are convicted for breaking these rules, often without knowing that Congress has decided to strip them of their rights under the Second Amendment. If actual knowledge of status is required for aliens, Alito argues that this change also means that felons, the mentally ill, and people who smoke marijuana occasionally will have to have actual knowledge of their status to be punished for possession of firearms.

This will be especially hard to prove, Alito argues, for the “mentally defective.” After all, those who “lack the intellectual capacity to possess firearms safely,” are also unlikely to know and understand their status.

Notably, this issue won’t just apply to people who are currently charged. Typically, decisions like these also apply retroactively to people who are on direct appeal from their convictions. That means many people currently languishing in federal custody may have an opportunity to challenge their convictions—a deluge federal courts experienced most recently when the court held that a commonly used sentencing enhancement law was too vague to be enforceable. This case may not resonate solely at the federal level. Many states model their statutes on federal law, and may find themselves bound to follow the Supreme Court’s interpretation where the language is identical.

Rehaif v. United States has surprisingly broad implications because it addresses two important, atypically partisan fault lines. First, what level of intent should be required to convict people for crimes? When Republicans in the last Congress proposed sweeping mens rea reform to include a default intent element for federal crimes, Democrats balked, fearing a conga line of white-collar acquittals. Second, how broadly should a right deemed both fundamental and individual by the Supreme Court in Heller be denied to whole swaths of Americans by legislative fiat? Thomas, who once fretted that the Second Amendment was being treated as a second-rate right, here finds himself in favor of sharply restricting it.

These issues provide something unique in all of American politics: the opportunity for liberals to push through initiatives like bail and sentencing reform by also addressing the meaningful criminal justice concerns of staunch conservatives. In the fallout of this case, we may witness a rare bipartisan agreement toward greater liberty.