The persistence of dangerousness: Brown v United States 22-6389, May 23 2024

A potential sentence for an offence may be increased if the offender has a record of serious offending.

The policy would be to reflect the social danger posed by such an offender, evidenced by persistent serious criminality.

What if the offences for which an offender has convictions are amended by subsequent legislation to make them less serious? They might no longer make the offender eligible for the increased sentence for the latest offence.

In some jurisdictions, legislation about the interpretation of legislation [1] may   make the answer fairly clear.

In Brown v United States 22-6389 (May 23, 2024) the Supreme Court of the United States divided over, if I might put it very broadly, the effect of the change in seriousness of some previous drug convictions for the purposes of sentencing for a firearms offence.

The majority (Alito J, joined by Roberts CJ, Thomas, Sotomayor, Kavanaugh and Barrett JJ) held that the policy of the legislation under which the present sentences were imposed was to reflect the increased social danger posed by persistent offenders, and that this danger was present regardless of the legislature’s reduction in the seriousness of the previous offending.

By way of example, the majority referred to the fact that after Prohibition, the legalization of alcohol “did not by any means ensure that these bootleggers would take up legitimate jobs … many of them simply shifted to other illegal enterprises.”

The position of the minority (Jackson J, joined by Kagan J and in part by Gorsuch J) was that the law is applicable as at the time of the present offending. This, they said, was clear from the plain words of the legislation under which the present sentences were imposed.

The minority added, in a part not joined by Gorsuch J who otherwise joined in the dissent, that the majority had not explained how the future dangerousness of an offender is best assessed by outdated assessments of the seriousness of previous offending. Furthermore, the majority’s interpretation did not include present offenders whose earlier offending would now be assessed as serious but which was not serious when it occurred.

And in a footnote Jackson J described the reference to bootleggers as “strained”, noting that many had successful legitimate careers, and in any event there was no evidence that Congress drew the same lessons from the Prohibition era when considering the present legislation.

The different approaches in this case leave us wondering whether dangerousness is best assessed by act or by attitude.

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[1] See, for example, the Legislation Act 2019 [NZ], s 35 . As its heading indicates, this gives continuing effect to powers exercised under legislation that has been repealed or amended. An example, I think, would be a conviction entered for an offence that has been amended or repealed; the conviction continues in existence, subject to contrary legislative provision. Sections 11 and 12 appear to be consistent with this. Contrary legislation might deem the earlier offences never to have happened, or might establish a procedure to “expunge” the convictions, for example as does the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 [NZ]; for the effect of expungement, see s 9.

Morality and causal attribution: R v Lozada, 2024 SCC 18

Whether a potential causal link between the defendant’s act and the harm proscribed by an offence was displaced by an act of another person can be a difficult factual issue. It can also be thought of as a moral issue, and it was so described by the trial judge whose instruction to the jury was the subject of appeal in R v Lozada, 2024 SCC 18, [12], [40].

As this case illustrates, there are various ways in which the attribution of this causation may be addressed.

The act of the “other person” may be called an intervening act, although to some people this might seem question-begging or conculsory. It seems that here, intervening means subsequent to the defendant’s act and before the occurrence of the proscribed harm. With that sorted out, it is possible to describe the subsequent act as intervening without presupposing that the necessary causal link has been broken.

Here there was an ugly fight between two groups, during which the victim was fatally stabbed by the “other person” who was convicted of murder. The two appellants had been charged with and convicted of manslaughter as principal parties, the Crown conceding that there was no evidence that they knew or expected that anyone in their group would use a weapon.

The fight can be called “ugly”, based on the majority’s description at [23]. In that context, was there (or, should there be held to have been) a causal link between the defendants’ assaults and the victim’s death?

The fundamental legal issue is whether, for each defendant, their conduct was “a significant contributing cause” of the victim’s death. [20] In Canadian jurisprudence, one of the subsidiary questions here is whether the so-called intervening act was reasonably (objectively) foreseeable. [22] It need not have been precisely foreseeable for there still to be a causal connection between the defendants’ acts and the death, as the inquiry is about the general nature of the intervening act rather than its specific kind. [24] The focus is on the contribution of each defendant to the victim’s death, and whether it was a significant cause of that death.

Causation is case-specific and fact-driven [23]. In group assaults, in the absence of an intervening act, the actions of all assailants can contribute significantly to all injuries sustained [28]. There is no single test or measure for determining whether a particular act has broken the chain of causation [29].

It would have been wrong for a juror to have seized on one of the considerations relevant to causation and ignored the others [22]. In determining whether a specific intervening act (here, the stabbing) was in its general nature reasonably foreseeable, the jury could ask itself whether the stabbing “naturally flowed” from each defendant’s conduct, whether the stabbing was “extraordinary and highly unusual”, whether it was “directly related” to each defendant’s unlawful act, and whether the stabbing was so overwhelming as to make the acts of each defendant “merely part of the background or setting” of the death, [20] whether the conduct of each defendant rendered the victim more vulnerable to the stabbing, and whether a defendant’s acts prevented assistance being given in defence of the victim. [21]

The dissenting justices, Rowe and Jamal JJ, considered that the trial judge’s instructions to the jury had left open the incorrect conclusion that because the continuation of the assaults on the victim and the resulting risk of non-trivial bodily harm to him was reasonably foreseeable the stabbing did not break the chain of causation between the defendants’ acts and the death. [37] The rendering of the victim more vulnerable did not address the question of the foreseeability of an assault which had the general nature of a stabbing [39], and the judge’s answer to the jury’s request for a definition of a break in the chain of causation did not correct the error [40]. The judge needed to address the foreseeability of an assault which had the general nature of a stabbing, and to leave to the jury whether its general nature was a continuation of the defendants’ assaults on the victim. [42]

Special significance may be attached to a judge’s answer to a question from the jury, and appellate judges may differ on whether, when read as a whole, the jury had received a correct direction on the law. [45] 

Here, the Supreme Court of Canada split 3-2 (the majority being Karakatsanis, Martin and Moreau JJ), which makes this appeal one of those which could leave us with the uneasy feeling that, after all the appeals are over, a case may not have been conducted according to law. How can we really know?

And what about the reference to morality? This was unexplored in the appeal judgments. The judge's instruction seems to leave open the possibility that jurors might have said to themselves, "Well, we can't agree on what the judge meant about the law, except we do remember that morality is relevant. We agree that the defendants should be found guilty, so that's our verdict."

My thought is that moral considerations played their part in the development of the law, but now their role is spent. We have trials according to law, not according to people's individual moralities. However, it is impossible to prevent juries from deciding that, whatever the law may be, in the particular circumstances a conviction would be wrong. That is an important safeguard for individuals.

Unfortunately these matters of morality, which are far more interesting than the relatively straightforward law of causation, seem to have been overlooked in this case.