The Volokh Conspiracy

The discourse about Moore v. Harper has proven predictable. We're told that the independent state legislature doctrine, whatever it is, doesn't actually exist! Much like the Second Amendment, the Non-Delegation Doctrine, and Sovereign Immunity, every conservative legal doctrine is really a fiction. Meanwhile progressive doctrines that do not really exist--a right to privacy, separation of church and state, and Bivens--must be preserved for the sake of legitamacisis. (I've merged legitimacy and stare decisis to save time.)

If the Petitioners in Moore are advocating for the independent state legislature doctrine, what are the respondents advocating for? I call it the independent state judiciary doctrine. In short, elected members of the state courts will have the final say over election law, without U.S. Supreme Court review.

I am not particularly surprised by the outpouring of support for respondents in Moore. The independent state judiciary doctrine is entirely consistent with notions of judicial supremacy. And not the newfangled conservative judicial supremacy where the people get to decide the abortion question. Rather, the independent state judiciary doctrine is consistent with old school, Warren-Court era judicial supremacy. That is, the courts can do whatever they think best to promote fairness. Even the most capacious provisions of the state constitution, drafted more than two centuries ago, can be used to invalidate legislative maps. Really, we have gone full circle from Justice Brennan's admonition that the state courts should be bulwarks of liberalism. But with the independent state judiciary doctrine, the elected legislature is helpless to change course.

Today the Ninth Circuit handed down an interesting opinion on restitution, confirming that criminal defendants can agree to pay expansive restitution beyond what is required by the crimes of conviction. Interpreting the general federal restitution statute--18 U.S.C. § 3663--the Ninth Circuit explained that Congress has granted district courts statutory authority to award restitution to the extent agreed to by the parties in a plea agreement. I argued this case for a sex trafficking victim ("Jane Doe")--along with my friends at Justice at Last, an excellent non-profit organization helping labor and sex trafficking victims. The Ninth Circuit's opinion discusses several important issues in crime victims' rights, which are worth briefly highlighting.

The case involves a defendant, who kidnapped Jane Doe, then twelve years old. The defendant drove her from California to Nevada to sexually exploit her. Eventually Jane Doe was able to alert authorities, and police arrested the defendant. Federal prosecutors indicted him for sex trafficking. Following lengthy plea discussions, the defendant entered into a written plea agreement. Under the agreement, in exchange for the government's promise to drop the sex trafficking charges, he pleaded guilty to two lesser crimes (interstate travel in aid of unlawful activity) and agreed to pay Jane Doe full restitution.

The plea agreement provided that "[t]he Defendant acknowledges that the conduct to which he is entering a plea … gives rise to mandatory restitution to the victim(s). See 18 U.S.C. § 2259. The Defendant agrees that for the purpose of assessing such restitution, the Court may consider losses derived from the counts of conviction as well as losses caused from dismissed counts and uncharged conduct in which the Defendant has been involved. The Defendant agrees to pay the victim(s) the 'full amount of the victim's losses' as defined in 18 U.S.C. § 2259(b)(3)."

In sentencing proceedings in the district court, the defendant received the shorter sentence that he had bargained for. He was sentenced to 96 months in prison, less than the prison term the federal sentencing guidelines would have called for if he had been convicted of sex trafficking. But extended wrangling followed over how much restitution the defendant owed. The defendant ultimately argued that he owed little or no restitution because he had not pleaded guilty to a crime under section 2259--the provision cited in the plea agreement. The district court agreed with this position. Despite finding that the defendant had engaged in "egregious conduct," the district court believed it was powerless to award restitution because the defendant had not admitted to a crime under section 2259.

At this point, Justice at Last and I filed a petition for a writ of mandamus with the Ninth Circuit. We argued that the district court had interpreted its restitution authority too narrowly.

We filed our mandamus petition under the Crime Victims' Rights Act, 18 U.S.C. § 3771, which promises crime victims (among other rights) the "right to full and timely restitution as provided in law." The CVRA also promises crime victims a decision within 72 hours of the filing of the petition, unless the litigants agree to a more extended schedule. Because we wanted to give the Ninth Circuit more time to evaluate our position, we proposed (with the agreement of the prosecutors and defense counsel) a longer schedule than just 72 hours to decide the case.

The several weeks ago, the Ninth Circuit issued a decision on whether the 72-hour requirement was jurisdictional. The Circuit (per Bybee, J.) decided that the requirement was not jurisdictional and thus was waivable by crime victims: "Holding the deadlines to be jurisdictional would prejudice the very victims that the statute was meant to protect, and so, absent clear indication from Congress, we will not interpret § 3771(d)(3) to require such a result."

Today, the Ninth Circuit (per Graber, J.) granted Jane Doe's petition for a writ of mandamus, reversing the district court's decision that it lacked statutory authority to award her any restitution. The Circuit began by holding that CVRA mandamus petitions are not subject to the stringent standard of review that ordinarily would apply to a petition for extraordinary relief. Instead, based on an earlier Ninth Circuit precedent and a 2015 amendment to the CVRA, ordinary standards of appellate review apply. In this case, because the issue was one of the legal authority of the district court to award restitution, the standard of review was de novo.

Regarding the district court's authority, the Circuit turned immediately to 18 U.S.C. § 3663(a)(3), which provides: "The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement." The Circuit explained that "Congressional intent is clear. If a defendant has agreed to pay restitution in a plea agreement, then the plain meaning of the statutory text grants the district court statutory authority to order the agreed-upon restitution."

Working through the restitution provision in the defendant's plea agreement, the Circuit concluded that it was potentially ambiguous. The provision could be read to require the defendant to pay restitution. But, on the other hand, as the defendant argued, it could be read to limit restitution only to crimes in violation of §  2259--and the defendant had not pled to such a crime.

Given the ambiguity, the Circuit resorted to extrinsic evidence of the parties' intentions in drafting the agreement. The defendant's interpretation would essentially mean that he would pay no restitution at all. But the parties' course of conduct revealed that the defendant was agreeing to pay substantial restitution to Jane Doe. The extrinsic evidence unambiguously demonstrated that the defendant had agreed to pay restitution to Jane Doe. Because the extrinsic evidence was conclusive, the rule that ambiguities in a plea agreement are construed against the government did not apply. Accordingly, the Circuit granted Jane Doe's petition and remanded to the district court to determine how much  restitution the defendant would pay.

On the surface, this today's ruling might appear to be solely a victory for crime victims. But the opinion will also prove useful to many defendants. Often defendants will want to plead guilty to less serious charges than the prosecutors have filed. But prosecutors may be concerned that, if the charges are reduced, the defendant may escape paying full restitution. Under the Ninth Circuit's decision, the problem is resolved by affirming that plea deals to lesser charges can be structured to provide full restitution to victims. As the Ninth Circuit explained, properly construed, the restitution statute "thus gives the government, victims, and defendants flexibility to reach a just result for all involved."

The Harlan Institute and Ashbrook are pleased to announce the Eleventh Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Students for Fair Admission v. University of North Carolina.

Teams that register before November 1, 2022 will be invited to participate in a virtual mentoring session. These sessions will be hosted during the week of November 14, 2022. The Harlan Institute will match each class with a mentor from our network. These sessions will be helpful to finalize your briefs and prepare your preliminary round arguments.

Coaches can register their teams at the Institute for Competition Sciences. After registering, teachers should contact the Harlan Institute and Ashbrook at info@HarlanInstitute.org. I have pasted the full announcement below the jump. Read More

Late Friday afternoon, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled that families whose relatives were killed in two Boeing 737 MAX crashes represented "crime victims" under the Crime Victims' Rights Act (CVRA). And because the Justice Department never conferred with the families before reaching the secret deferred prosecution deal with Boeing, the Department violated the CVRA. Judge O'Connor ordered further proceedings on the appropriate remedy for the Department's violations of law. As the lead attorney representing the families, I will argue that the appropriate remedy (among others) is to rescind the provision in Boeing's deal barring its prosecution for lying to the FAA--lies that, as the judge has ruled, killed 346 people.

While news reports have already flashed the headline about the judge's important ruling, many of the details and legal pleadings are difficult to find. This post summarizes the case, with links to important documents.

As I blogged about previously, this case arises from the Justice Department secretly negotiating a deferred prosecution agreement (DPA) with Boeing concerning its crimes connected to the  two Boeing 737 MAX crashes. Both crashes were caused by a new part Boeing built into the 737 MAX--a software system called the Maneuvering Characteristics Augmentation System (MCAS).  Tragically, in the two crashes, MCAS improperly activated and drove the planes down. On October 28, 2018, Lion Air Flight 610 crashed shortly after takeoff into the Java Sea, killing all 189 passengers and crew on board. A little more than four months later, on March 10, 2019, Ethiopian Airlines Flight 302 suffered the same fate, also crashing shortly after takeoff and killing all 157 passengers and crew.

After the two crashes, the Justice Department began investigating whether Boeing had lied to the Federal Aviation Administration (FAA) about the new MCAS system. For the first six months of the investigation, Boeing frustrated the Department's efforts to uncover what happened. But ultimately, the Justice Department learned that Boeing test pilots had concealed from the FAA how MCAS operated. The reason for the deception was to secure less onerous training requirements for pilots transitioning to fly the MAX from other older 737 models. These less-rigorous training requirements enabled Boeing to earn millions of dollars when selling the plane; as a selling point, Boeing had promised its airline customers that additional flight simulator training would not be required for pilots already qualified to fly the 737 MAX's predecessors.

The Justice Department and Boeing began negotiating how to resolve the criminal charges. While those negotiations were going on, the families of those who died reached out to the Justice Department to be involved in the negotiations. The Justice Department's Victims' Rights Ombudsman told the families--falsely--that no criminal investigation was on-going.

Ultimately, the Justice Department and Boeing secretly reached a deal, under which Boeing would be charged with the crime of conspiring to lie to the FAA. Boeing admitted the allegations, but would not enter a guilty plea to the charge. Instead, prosecution of the crime would be deferred for three years. If Boeing complied with its obligations under the agreement, at the end of the three-year period, the charges would be dismissed.  Boeing also agreed to pay $1.7 billion to its airline customers and $500 million to the crashes victims' families. It also agreed to pay a fine of $243 million.

The agreement was reached in secret negotiations between the Justice Department and Boeing. On January 7, 2021, the deal between Boeing and the Justice Department was filed with Judge O'Connor in the Northern District of Texas. It was swiftly criticized as being one of the worst plea agreements in history. Critics pointed out that the $1.7 billion payment to customers was something that Boeing was already contractually obligated to do; the amount was included in the DPA to inflate the apparent amount of the settlement. Moreover, the agreement contained an unprecedent provision in which the Justice Department stated (without explanation) that "the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior mismanagement."

But in my view, the Boeing DPA's worst feature was that it was negotiated without participation by the victims' families. In the federal criminal justice system, the CVRA requires prosecutors to afford to crime victims the reasonable right to confer with them about a case and also timely notice of any deferred prosecution agreement. In a case involving the death of a crime victim, a surviving family member can step into a case to assert the rights of the person killed. The families should have been involved in negotiating such a far-reaching agreement. Instead, the families learned about the deal only through Twitter and Facebook reports.

In December 2021, I filed a motion alleging that the Justice Department violated its CVRA obligations to fifteen families whose family members were killed in the two crashes. I argued that because of that violation, the DPA was illegally concluded. I also filed a motion urging the district court to carefully scrutinize the proposed DPA and ensure that it held Boeing and its management accountable for their crimes. I also filed one last motion urging the district court to formally arraign Boeing and impose standard conditions of release on the company.

At this point, I contacted the Justice Department to see whether Attorney General Garland would support the victims' families. After a meeting with General Garland, however, the Justice Department filed a brief  arguing that the families did not represent "crime victims" under the CVRA. In the Government's view, only the FAA was the victim of Boeing's conspiracy to conceal information about the MCAS. Boeing also responded, arguing that the district court was powerless to do anything about the deal that Boeing had reached with the Government.

In my reply brief, I worked through the requirements for "crime victim" status under the CVRA. The CVRA extends rights not only to those specifically named in the charging document but also to anyone "directly and proximately harmed" as the result of the crime. In this case, because Boeing's lies to the FAA led directly and proximately to the two crashes--and to the deaths of 346 passengers and crew members on board--the families represented crime victims under the CVRA. This assertion about the causal connection between Boeing's lies and the crashes was supported by a detailed proffer of facts that the families could prove at an evidentiary hearing.

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The Southeastern Legal Foundation is hiring two attorney positions:

Senior Litigation Attorney

SLF is hiring Litigation Attorneys with 7+ years of experience, who are committed to putting their courtroom, legal strategy, and communication skills towards advancing our public interest mission. Are you an attorney who believes in our constitutional system and is willing to fight hard to protect it? Do you have experience with constitutional law, individual rights, property rights law, separation of powers issues, and a love of American values? Are you interested in working with a committed group of like-minded attorneys who put excellence and principles before everything else? If so we want to hear from you!

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Litigation Attorney

SLF is hiring Litigation Attorneys with at least 2 years of experience who believe in our constitutional system and are willing to fight hard to protect it. Are you committed to putting their courtroom, legal strategy, and communication skills towards advancing our public interest mission? Do you want to make a more direct impact in holding government and other state actors accountable for crossing constitutional lines? Do you love to litigate, but are eager to be passionate about your cause? If so we want to hear from you!

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