Notable new cert petition seeks to undo atextual “petty offenses” exception to constitutional jury trial right

December 15, 2024

In prior posts (some linked below), and also in this recent post over at the Sentencing Matters Substack, I have mused in various ways about what the Supreme Court’s originalist turn could and should mean for various sentencing doctrines and broader criminal justice constitutional jurisprudence. And so I was intrgued to see this new press release from the New Civil Liberties Alliance highlighing a new cert petition urging the Supreme Court to overturn its (unoriginalist) limit of just trial rights. Here excerpts from the press release:

[On December 13, 2024], the New Civil Liberties Alliance and the Stanford Law School Supreme Court Litigation Clinic petitioned the Supreme Court to hear David Lesh v. United States. On behalf of Mr. Lesh, NCLA seeks to overturn the Court’s unjust precedent that directly contradicts the explicit language of the Constitution by denying individuals charged with “petty offenses” their right to a jury trial. This precedent led the U.S. Court of Appeals for the Tenth Circuit to rule that NCLA client David Lesh was not deprived of his constitutional jury-trial right when prosecuted and convicted for violating U.S. Forest Service (USFS) regulations. The Supreme Court should take this opportunity to eliminate the “petty-offense exception.”…

The Supreme Court’s “petty-offense exception” to the Constitution’s jury-trial guarantee required the Tenth Circuit to uphold the magistrate’s determination that Mr. Lesh was not entitled to a jury trial. However, in a powerful concurrence, Tenth Circuit Judge Tymkovich, joined by Judge Rossman, urged the Supreme Court to revisit the doctrine. Judge Tymkovich explained that this exception appears to be inconsistent with the text of both Article III of the Constitution and the Sixth Amendment, and he noted that the exception has been called into question by many constitutional scholars. Notably, the district court judge, who reviewed the magistrate’s determination, had made a similar observation in his decision upholding the convictions.

The Sixth Amendment’s jury-trial guarantee “[i]n all criminal prosecutions” is currently interpreted by the Supreme Court to exclude petty offenses — those generally carrying a penalty of six months’ imprisonment or less. Article III independently protects this right as well, requiring trials for all crimes. The exception applies even if, as in Mr. Lesh’s case, the defendant could conceivably serve more than six months if multiple counts of conviction are served consecutively. Regardless, the exception contravenes the Constitution’s plain language and history and contradicts the Supreme Court’s methods for interpreting constitutional text. The Justices have recently made clear that Americans cannot be stripped of their right to a jury trial for reasons of efficiency or expedience.

Lots of informatin about this case are assembled on this NCLA page, and here are a few excerpts from the cert petition (which is worth reading in full):

Today, the petty-offense exception denies criminal defendants the right to jury trial when they are charged with crimes punishable by a maximum of six months’ imprisonment and that are not otherwise judicially classified as “serious”— even when charged with multiple counts punishable by six months each….

This departure from the plain and unambiguous text of the Constitution violates a core promise of the Framers: that, in a criminal case, a jury of one’s peers would always stand between the accused and the power of the state to deprive him of liberty or property. It also makes a hash of the Constitution’s broader structure, rendering other carefully calibrated language regulating criminal procedure either meaningless or nonsensical. And the petty-offense exception flouts the historical common-law rule the Constitution was meant to render inviolate….

[T]he petty-offense exception flouts the text, structure, and history of the Constitution. But that is not all; it is also flatly inconsistent with this Court’s modern methodology for construing the Sixth Amendment….

Yet instead of adhering to the original public meaning of the right to jury trial, the Court has grounded its petty-offense exception in a balancing of policy considerations. The Court has opined that “the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications.” Duncan, 391 U.S. at 160. And when creating the six-month cutoff for petty offenses, this Court “weigh[ed] the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically conclud[ed] that the scale tips at six months’ imprisonment.” Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring in the judgment).

A few of many recent posts on originalism topics: