The US Supreme Court heard oral arguments Tuesday in the cases of United States v. Briggs and Chicago v. Fulton. The court heard the argument by telephone with live-streamed audio.
The Briggs case was consolidated with United States v. Collins in November 2019 and another case. In all three cases, the respondent is a man in the military convicted of rape. The respondents claim that the statute of limitations should have barred their prosecutions. The US Court of Appeals for the Armed Forces agreed with them.
The oral argument in Briggs focused on the question of how to define crimes “punishable by death,” the Uniform Code of Military Justice’s category of crimes that have no statute of limitations. When that phrase was written, members of the military convicted of rape were eligible for the death penalty. Subsequent Supreme Court decisions held that the Eighth Amendment principle of proportionality prohibited the death penalty as punishment for rape, at least in a civilian context.
Both parties primarily made a statutory argument. The Solicitor General, describing the position of the government, said, “Our frontline statutory position is Congress was referring to the punishment it had chosen … even if the courts decide that that punishment is taken off the table by the Constitution.” That is, the statutory language that “any offense punishable by death” would have no statute of limitations was a shorthand to refer to a set of serious crimes, and that list was not meant to change should courts in the future restrict the scope of the death penalty. The government did not need to argue that rape is currently death penalty-eligible in the military courts—just that it has no statute of limitations because it once was. The other side argued that the statutory language was deliberately broad, leaving room for court rulings on the death penalty to affect military statutes of limitations.
The justices mostly asked a mix of questions about the text, legislative history and past interpretation of the statute. But several justices also approached the constitutional question of whether the Eighth Amendment would prohibit capital punishment for rape in the military; if it would not, then rape would have no statute of limitations since it would remain a crime punishable by death. Chief Justice John Roberts noted that “the analysis in Coker seems at least consistent with the notion that the military context is—continues to be distinct,” and Justice Brett Kavanaugh asked the solicitor general, “Do you think there’s any Eighth Amendment limit on Congress’s power to make offenses in the military punishable by death?” The government, while not relying on this constitutional argument, did address it, saying that the Eighth Amendment would not apply because “the needs are different, there’s no national consensus, and the goals of the criminal law are served differently, and, in the military context, you defer to Congress’s judgments about military matters, including military justice.”
At stake in Chicago v. Fulton is whether the city was obligated to return an impounded car when the owner declared bankruptcy. As the city framed the question in the oral argument, “this case presents the question whether the Bankruptcy Code’s automatic stay requires a creditor in lawful possession of estate property when a bankruptcy petition is filed to return that property to the debtor immediately or else pay damages.”
The Department of Justice was also granted time in the argument. The assistant to the Solicitor General argued in support of the petitioner’s position, characterizing the automatic stay provision as a way of maintaining “the status quo” in that the stay prevents creditors from pursuing any obligations against the debtor during the bankruptcy proceedings. The stay does not force them to turn over any property that they have possession of which the debtor retains some possessory interest in, though it would prevent the creditor—in this case, the city—from selling that property.
The respondents argued that the stay should require the city to return impounded cars. They argued that “the automatic stay in Section 362(a)(3) of the Bankruptcy Code provides that a creditor may not act to exercise control over a debtor’s property,” and said that maintaining possession, as much as attempting to take possession, should be understood as exercising control.
Questions of equity hovered in the background of the case. In the wake of the Justice Department’s report a few years on the city of Ferguson, a great deal of journalism has highlighted municipal practices of deriving funding from fines and fees on their most vulnerable residents. Justice Neil Gorsuch called Chicago’s policy of impounded cars for unpaid tickets “well established and highly controversial.”
In her questions to the petitioners, Justice Sonia Sotomayor pointed out that, while the bankruptcy code has another provision allowing a debtor to initiate an adversarial proceeding to get property turned over, “adversary proceedings take several months,” and for many of the people affected, “the cars are the only means they have to get to work.” Her questions suggested that the difficulty of losing the car may be inconsistent with the policy goals of bankruptcy of allowing people a fresh start: “How can we ensure that these processes would go fast enough to save the debtor from not being able to rehabilitate?”
