Amicus Curiae Brief — David Lesh, Petitioner v. United States

No. 24-654

IN THE

Supreme Court of the United States

DAVID LESH,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

Jeffrey T. Green

Co-Chair, AMICUS COMMITTEE

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1600 L Street, N.W.

Washington, DC 20036

Olivia Goldberg

John Seidman

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, DC 20036

Matt Aidan Getz

Counsel of Record

Kahn A. Scolnick

Patrick J. Fuster

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Ave.

Los Angeles, CA 90071

(213) 229-7754

mgetz@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 5

I.

The jury-trial right is vital for criminal

defendants and society as a whole .......................5

II. The petty-offense exception does real

harm to the core values the jury-trial

right is meant to protect ..................................... 11

III. There are no sound reasons to maintain

the petty-offense exception................................. 18

CONCLUSION .......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Amezcua v. Eighth Jud. Dist. Ct.,

2012 WL 439405

(Nev. Feb. 9, 2012) ............................................... 14

Andersen v. Eighth Jud. Dist. Ct.,

448 P.3d 1120 (Nev. 2019) ................................... 20

Bado v. United States,

186 A.3d 1243 (D.C. 2018) ................................... 19

Baldwin v. New York,

399 U.S. 66 (1970) .................................... 11, 15, 22

Ballew v. Georgia,

435 U.S. 223 (1978) ................................................ 9

Blakely v. Washington,

542 U.S. 296 (2004) ................................................ 8

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989) .................................. 11, 15, 18

District of Columbia v. Clawans,

300 U.S. 617 (1937) .............................................. 15

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................... 2, 6, 7, 8, 9,

............................................................ 11, 16, 17, 19

Erlinger v. United States,

602 U.S. 821 (2024) .................................. 7, 8, 9, 16

Fallen v. United States,

290 A.3d 486 (D.C. 2023) ..................................... 19

iii

Foote v. United States,

670 A.2d 366 (D.C. 1996) ..................................... 14

Fretes-Zarate v. United States,

40 A.3d 374 (D.C. 2012) ....................................... 13

Ivy v. United States,

2010 WL 1257729

(W.D. Ky. Mar. 26, 2010) ..................................... 19

Janus v. Am. Fed’n of State,

Cnty. & Mun. Emps.,

585 U.S. 878 (2018) .............................................. 18

Khorrami v. Arizona,

143 S. Ct. 22 (2022) ................................................ 9

Landry v. Hoepfner,

840 F.2d 1201 (5th Cir. 1988) .............................. 18

Lewis v. United States,

518 U.S. 322 (1996) .................................... 3, 13, 16

McClinton v. United States,

143 S. Ct. 2400 (2023) .......................................... 10

Mitchell v. United States,

683 A.2d 111 (D.C. 1996) ..................................... 13

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 19

People v. Cathlin,

2022 WL 10818359

(N.Y. App. Term Oct. 12, 2022) ........................... 14

People v. Suazo,

118 N.E.3d 168 (N.Y. 2018) ................................. 19

People v. Wrighton,

918 N.Y.S.2d 724 (App. Div. 2011) ...................... 19

iv

Powers v. Ohio,

499 U.S. 400 (1991) .............................................. 10

Ramos v. Louisiana,

590 U.S. 83 (2020) ........................................ 2, 5, 22

Rauch v. United States,

2007 WL 2900181

(E.D. Cal. Sept. 28, 2007) .............................. 14, 19

Richter v. Fairbanks,

903 F.2d 1202 (8th Cir. 1990) .............................. 18

Schick v. United States,

195 U.S. 65 (1904) .......................................... 11, 15

Smith v. United States,

768 A.2d 577 (D.C. 2001) ..................................... 14

State v. Denelsbeck,

137 A.3d 462 (N.J. 2016)................................ 14, 18

State v. Perkins,

2008 WL 4416656

(Ohio Ct. App. Sept. 30, 2008) ............................. 14

Taylor v. Louisiana,

419 U.S. 522 (1975) ................................ 3, 9, 10, 16

United States v. Chavez,

204 F.3d 1305 (11th Cir. 2000) ...................... 14, 20

United States v. Clavette,

135 F.3d 1308 (9th Cir. 1998) ........................ 14, 18

United States v. Combs,

2005 WL 3262983

(D. Neb. Dec. 1, 2005) .......................................... 20

United States v. Donovo,

2002 WL 1874838

(D. Alaska Aug. 7, 2002) ...................................... 19

v

United States v. Lambert,

594 F. Supp. 2d 676 (W.D. Va. 2009) .................. 14

United States v. LaValley,

957 F.2d 1309 (6th Cir. 1992) .............................. 14

United States v. Mouret-Romero,

2019 WL 1166951

(S.D. Cal. Mar. 13, 2019) ............................... 14, 19

United States v. Singh,

2020 WL 5500232

(S.D. Cal. Sept. 11, 2020) ..................................... 20

United States v. Smith,

151 F. Supp. 2d 1316 (N.D. Okla. 2001) ............. 20

United States v. Snow,

2011 WL 5025535

(D. Or. Oct. 21, 2011) ........................................... 20

United States v. Soderna,

82 F.3d 1370 (7th Cir. 1996) ................................ 18

United States v. Thomas,

833 F. App’x 782 (11th Cir. 2020)........................ 15

United States v. Thornton,

2000 WL 732929

(9th Cir. June 5, 2000) ......................................... 14

United States v. Wallen,

874 F.3d 620 (9th Cir. 2017) ................................ 14

United States v. Webster,

2009 WL 2366292

(D. Md. July 30, 2009).......................................... 14

Constitutional Provisions

U.S. Const. art. III, § 2, cl. 3 ............................... 2, 5, 7

vi

U.S. Const. amend. VI ......................................... 2, 5, 7

Statutes

18 U.S.C. § 113 .......................................................... 12

18 U.S.C. § 3559 ........................................................ 21

40 U.S.C. § 5104 ........................................................ 17

D.C. Code § 22-404 .................................................... 12

D.C. Code § 22-405.01 ............................................... 17

D.C. Code § 22-933 ..................................................... 13

D.C. Code § 22-2302 .................................................. 17

D.C. Code § 22-3212 .................................................. 13

D.C. Code § 22-3312.01 ............................................. 17

D.C. Code § 22-1001 ................................................... 13

D.C. Code § 22-3302 .................................................. 17

D.C. Code § 48-904.01 ............................................... 13

Kan. Stat. Ann. § 21-5414 ......................................... 12

Ky. Rev. Stat. Ann. § 510.130 ................................... 12

N.Y. Penal Law § 130.55 ........................................... 12

N.Y. Penal Law § 165.35 ........................................... 12

N.Y. Penal Law § 240.10 ........................................... 17

N.Y. Penal Law § 240.78 ........................................... 12

Nev. Rev. Stat. § 200.481 .......................................... 12

Nev. Rev. Stat. § 200.575 .......................................... 12

Regulations

36 C.F.R. § 2.16 ......................................................... 12

36 C.F.R. § 4.23 ......................................................... 13

vii

36 C.F.R. § 7.96 .......................................................... 12

36 C.F.R. § 261.7 ........................................................ 12

36 C.F.R. § 261.8 ........................................................ 12

36 C.F.R. § 261.14 ..................................................... 12

36 C.F.R. § 261.18 ...................................................... 12

36 C.F.R. § 261.22 ...................................................... 12

Rules

Sup. Ct. R. 37.2 ............................................................ 1

Historical Materials

Blackstone, Commentaries on the Laws

of England (Cooley 3d rev. ed. 1884) ..................... 6

Declaration of Independence ...................................... 7

Journals of the Continental Congress,

1774-1789 (Ford ed. 1904) ..................................... 7

Resolutions of the Stamp Act Congress,

reprinted in Sources of Our Liberties

(Perry ed. 1959) ...................................................... 7

Story, Commentaries on the Constitution

of the United States (1833 ed.) ...................... 2, 6, 8

Tocqueville, Democracy in America

(1862 ed., Reeve trans.) ............................... 4, 8, 10

Other Authorities

Amar, The Bill of Rights as a Constitution,

100 Yale L.J. 1131 (1991) ...................................... 6

Appendix D to Advisory Group Memo #40—

Last in Time Data, D.C. Crim. Code

Reform Comm’n (2021),

https://tinyurl.com/4pewf9s5 ............................... 13

viii

Barkow, Recharging the Jury: The

Criminal Jury’s Constitutional Role

in an Era of Mandatory Sentencing,

152 U. Pa. L. Rev. 33 (2003) .................................. 9

D.C. Crim. Code Reform Comm’n, First

Draft of Report #51—Jury

Demandable Offenses (2020),

https://tinyurl.com/4bb47x4w .............................. 16

Gorsuch & Nitze, Over Ruled:

The Human Toll of Too Much Law (2024) .......... 12

King, Juries, Democracy, and Petty Crime,

24 U. Pa. J. Const. L. 817 (2022) ............. 15, 19, 21

Memorandum from D.C. Crim. Code

Reform Comm’n to Code Revision

Advisory Grp. (Feb. 25, 2020),

https://tinyurl.com/yr8t7z4c .......................... 20, 21

Table M-1A, U.S. District Courts—Class A

Misdemeanor Defendants Disposed of by

U.S. Magistrate Judges, by Type of

Disposition, During the 12-Month Period

Ending September 30, 2023, U.S. Courts

(2023), https://tinyurl.com/2tkjcyhd .................... 21

Table M-2A, U.S. District Courts—Petty

Offense Defendants Disposed of by U.S.

Magistrate Judges, by Disposition,

During the 12-Month Period Ending

September 30, 2023, U.S. Courts (2023),

https://tinyurl.com/4upa2jdx ......................... 12, 21

IN THE

Supreme Court of the United States

No. 24-654

DAVID LESH,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE 1

The National Association of Criminal Defense

Lawyers, or NACDL, is a nonprofit voluntary professional bar association that works on behalf of criminal

defense attorneys to ensure justice and due process for

those accused of crimes or misconduct. NACDL was

1

No counsel for a party authored this brief in whole or in part,

and no entity or person other than NACDL, its members, and its

counsel made a monetary contribution intended to fund the preparation or submission of this brief. Counsel of record for the parties received notice of NACDL’s intent to file this brief at least

10 days before its due date under this Court’s Rule 37.2.

2

founded in 1958 and has a nationwide membership of

many thousands of direct members and up to 40,000

attorneys in affiliate organizations. NACDL is dedicated to advancing the proper, efficient, and fair administration of justice. NACDL files many amicus

briefs each year in this Court and other federal and

state courts, seeking to provide assistance in cases

presenting issues important to criminal defendants,

criminal defense lawyers, and the criminal legal system as a whole.

SUMMARY OF ARGUMENT

I. The right to trial by jury in criminal prosecutions was a foundational feature of English legal tradition. And at the Founding, it became just as central

to the American justice system—and to American democracy more broadly.

The jury-trial right traces back “to Magna Carta”

and interposes “the common-sense judgment of a jury”

between the criminal defendant whose liberty is at

stake and the prosecutor and judge who might deprive

him of it. Duncan v. Louisiana, 391 U.S. 145, 151-56

(1968). That right was front and center as the colonies

protested tyranny and built our constitutional system,

with early Americans viewing trial by jury as a “birthright and inheritance” that shielded them from “the

approaches of arbitrary power.” 3 Story, Commentaries on the Constitution of the United States § 1773,

at 652-53 (1833 ed.). So the Framers enshrined that

vital right in the Constitution “twice,” Ramos v. Louisiana, 590 U.S. 83, 89 (2020), providing that “Trial of

all Crimes . . . shall be by Jury,” U.S. Const. art. III,

§ 2, cl. 3, and reiterating that defendants have the

right to trial by jury “[i]n all criminal prosecutions,”

U.S. Const. amend. VI.

3

The jury-trial right received double billing because

it is important in so many ways. It acts as a structural

constraint on government power, hemming in both the

executive and the judiciary. It shields defendants from

both “the overzealous or mistaken prosecutor” and “the

professional or perhaps overconditioned or biased response of a judge.” Taylor v. Louisiana, 419 U.S. 522,

530 (1975). It ensures quality decision-making and fair

outcomes, requiring unanimity among a diverse pool

of jurors before a defendant can be branded as a criminal. And it inspires trust in the legal system and

gives people invaluable insight into public officials’ exercise of power. Requiring trial by jury thus benefits

criminal defendants, democratic society, and everything in between.

II. The Constitution doesn’t qualify the jury-trial

right it establishes. But over time, this Court has

done just that. It has held that “petty” crimes, presumptively those punishable by up to six months in

prison, aren’t weighty enough to be tried to a jury.

That cut-from-whole-cloth exception is wreaking

havoc on criminal defendants and on the interests the

jury-trial right is meant to protect.

Today, “petty” crimes are ubiquitous and cover

virtually every facet of personal and professional life.

Some, like the one at issue in this case, are regulatory

crimes of recent vintage. Others are analogues of more

traditional crimes. But what these wide-ranging offenses have in common are the dramatic consequences

that follow conviction. Defendants can be (and often

are) imprisoned for months after being convicted by a

single judge, without unanimous agreement by any

jury. Sentences for petty offenses can be stacked,

leaving defendants in jail for well beyond six months,

again without a jury. Lewis v. United States, 518 U.S.

4

322, 330 (1996). And beyond jail time lies an array of

punishments and other consequences of conviction—

probation, fines, suspended licenses, loss of employment, disqualification from benefits, loss of firearm

rights, immigration consequences, loss of child custody, loss of a home, and more. Calling consequences

like these “petty” is an insult to language—and to the

criminal defendants facing those consequences.

As a result of the petty-offense exception, defendants are being deprived of their jury-trial right and

the benefits and safeguards that come with it. Jury

trials hold prosecutors accountable and ensure that

one judge’s view doesn’t substitute for the voice of the

broader community. But defendants prosecuted for

petty offenses are left without that shield, and as a

result, petty-crime convictions don’t reflect the sort of

reasoned, collaborative deliberation the Framers

prized. Worse, shunting petty-crime prosecutions into

judge-only proceedings papers over an invaluable window into government power, depriving the people of a

tool they need “to rule well.” 1 Tocqueville, Democracy

in America 339 (1862 ed., Reeve trans.).

III. This Court should overrule the aberrant

petty-offense exception. Doing so will yield substantial benefits at minimal cost.

For decades, courts have been all over the map in

trying to determine what offenses punishable by up to

six months in prison are nonetheless sufficiently “serious” to warrant a jury trial. They have struggled to

determine the point at which monetary and nonmonetary punishments become grave enough to trigger

the right. They have struggled just as much with collateral consequences, which present similar linedrawing issues and also require courts to consider

subjective, defendant-specific evidence. The resulting

5

uncertainty isn’t going away, and it means endless litigation and wasted resources tinkering with a judgemade category that’s nowhere to be found in the Constitution’s text or history. All that confusion will disappear if the Court returns to the unqualified right

the Framers embraced.

There’s also no reason to think that overruling the

petty-offense exception will have untoward consequences. About three-quarters of the states already

permit jury trials in prosecutions of “petty” offenses.

And because most defendants resolve criminal

charges through plea bargaining, correcting course on

the jury-trial right isn’t going to dramatically transform the number of trials. It will, however, ensure

that criminal defendants have the option to demand a

jury trial precisely where it is most needed—in cases

where the government is abusing its power by seeking

to imprison a person based on charges and evidence

that a jury wouldn’t buy.

ARGUMENT

I.

The jury-trial right is vital for criminal

defendants and society as a whole.

It’s hard to overstate the importance of the right

to trial by jury in criminal cases. That right has both

a long pre-constitutional lineage and the rare distinction of being enshrined in the Constitution not once,

but twice. Ramos v. Louisiana, 590 U.S. 83, 89 (2020);

see U.S. Const. art. III, § 2, cl. 3; id. amend. VI. The

Framers were wise to place such importance on the

right. It is fundamental to any process through which

the government seeks to brand a person as a criminal

and deprive him of his liberty. And more broadly, the

jury-trial right redounds to the benefit of democratic

society. That’s why this Court has consistently

6

safeguarded the right—except with respect to the

petty-offense exception at issue here.

A. Even before the Founding, the right to trial by

jury in criminal cases “had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta.” Duncan v.

Louisiana, 391 U.S. 145, 151 (1968). Blackstone explained that the right ensured that government power

could not be exerted “without check or control.” 4

Blackstone, Commentaries on the Laws of England

349 (Cooley 3d rev. ed. 1884). By requiring that any

criminal charge “afterwards be confirmed by the

unanimous suffrage of twelve of [the defendant’s]

equals and neighbours,” the right imposed a crucial

“barrier . . . between the liberties of the people, and

the prerogative of the crown.” Id. at 349-50.

In its common-law beginnings, the jury-trial right

reflected a frank acknowledgement of the need for

“safeguard[s] against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric

judge.” Duncan, 391 U.S. at 156. “[H]istory and experience” had taught that, too often, the government’s

power to prosecute would be used “to eliminate enemies” and judges would be “too responsive to the voice

of higher authority.” Ibid. In fact, English history

was rife with examples of judges who had “acquiesced

in government tyranny.” Amar, The Bill of Rights as

a Constitution, 100 Yale L.J. 1131, 1185 (1991). So

the right to trial by jury in criminal cases “was from

very early times insisted on . . . as the great bulwark

of [people’s] civil and political liberties, and watched

with an unceasing jealousy and solicitude.” 3 Story,

Commentaries on the Constitution of the United

States § 1773, at 652 (1833 ed.).

7

The early American experience taught the same

lesson. When the Stamp Act Congress convened in

1765, one of its principal objections was to British interference with “trial by jury,” which it called “the inherent and invaluable right of every British subject in

the[] colonies.” Resolutions of the Stamp Act Congress, art. VIII, reprinted in Sources of Our Liberties

270 (Perry ed. 1959). They had seen firsthand that

trial by judge had “proved most effective at securing

the verdicts” that British authorities sought. Erlinger v. United States, 602 U.S. 821, 829 (2024)

(cleaned up). The colonists repeated that objection in

the First Continental Congress, see 1 Journals of the

Continental Congress, 1774-1789, at 69 (Ford ed.

1904), and ultimately in the Declaration of Independence (¶ 20). And after prevailing in the Revolutionary

War, Americans enshrined the right to a jury trial in

“every newly enacted state constitution”—the only

right to be treated as indispensable across the board.

Erlinger, 602 U.S. at 829-30.

“Fear of unchecked power” was likewise front and

center in the design of the federal Constitution, and

that concern “found expression in the criminal law in

th[e] insistence upon community participation in the

determination of guilt or innocence.” Duncan, 391

U.S. at 156. The Framers provided that the “Trial of

all Crimes, except in Cases of Impeachment, shall be

by Jury.” U.S. Const. art. III, § 2, cl. 3. And they soon

reinforced the right, providing that “[i]n all criminal

prosecutions” the defendant would have the right to

trial “by an impartial jury.” Id. amend. VI.

Over time, the jury-trial right has become synonymous not just with American criminal law, but

also with the American democratic experiment.

Alexis de Tocqueville marveled that the jury-trial

8

right’s influence on criminal law is “subordinate to

the powerful effects which it produces on the destinies

of the community at large.” 1 Tocqueville, Democracy

in America 333 (1862 ed., Reeve trans.). As he put it,

“the Jury, which is the most energetic means of making the people rule, is also the most efficacious means

of teaching it to rule well.” Id. at 339. By incorporating the jury-trial right into the Constitution, the

Framers solidified a “great privilege” that Americans

had come to view “as their birth-right and inheritance” and a core protection “against the approaches

of arbitrary power.” Story, supra, § 1773, at 652-53.

B. This Court has long worked to protect the jurytrial right the Framers enshrined. And in doing so,

the Court has identified five related and mutually reinforcing interests that the right serves.

First, the jury-trial right is “no mere procedural

formality, but a fundamental reservation of power in

our constitutional structure.” Blakely v. Washington,

542 U.S. 296, 305-06 (2004). “Just as suffrage ensures

the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their

control in the judiciary.” Id. at 306. The people, in

other words, get the final say on whether a member of

the community can be labeled as a criminal and punished as such—a check that is “essential to prevent a

slide back toward regimes like the vice-admiralty

courts [the Framers] so despised.” Erlinger, 602 U.S.

at 832. Like all structural features of our Constitution, that “fundamental decision about the exercise of

official power” warrants respect. Duncan, 391 U.S. at

155-56.

Second, the jury acts as a “circuitbreaker,” protecting against arbitrary prosecutions and judicial

overreach. Blakely, 542 U.S. at 306. As this Court has

9

explained, the jury-trial right serves “as a hedge

against the overzealous or mistaken prosecutor” and

“the professional or perhaps overconditioned or biased

response of a judge.” Taylor v. Louisiana, 419 U.S.

522, 530 (1975); see Erlinger, 602 U.S. at 832 (juries

“mitigate the risk of prosecutorial overreach and misconduct, including the pursuit of ‘pretended offenses’

and ‘arbitrary convictions’”). The government and the

judge are both “repeat player[s] in the criminal justice

process,” and as a result they can “become desensitized to the enormity of what is at stake in a criminal

proceeding.” Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 72 (2003). Requiring trial by jury ensures that criminal cases are

seen “with a fresh set of eyes” and with “no institutional bias.” Ibid.

Third, the jury-trial right ensures quality decisionmaking. This Court has recognized “empirical data”

showing that “[w]hen individual and group decisionmaking were compared, it was seen that groups performed better because prejudices of individuals were

frequently counterbalanced, and objectivity resulted.”

Ballew v. Georgia, 435 U.S. 223, 232-33 (1978) (plurality opinion). And requiring trial by jury does more

than just prevent outlier or unreasoned decisions. It

also injects into the criminal process “the commonsense judgment of a jury,” which the Framers preferred over “the more tutored but perhaps less sympathetic reaction of the single judge.” Duncan, 391 U.S.

at 156. Juries drawn from a fair cross-section, in other

words, are more likely to “represent the community’s

perception of the facts than [single] trial judges.” Barkow, supra, at 72 (cleaned up); see Ballew, 435 U.S. at

233-34; see also Khorrami v. Arizona, 143 S. Ct. 22, 27

(2022) (Gorsuch, J., dissenting from denial of certiorari)

10

(citing research showing that conviction rates vary depending on racial composition of jury).

Fourth, juries inspire trust in the legal system.

“Community participation in the administration of

the criminal law,” this Court has recognized, “is not

only consistent with our democratic heritage but is

also critical to public confidence in the fairness of the

criminal justice system.” Taylor, 419 U.S. at 530. Juries are the public’s window into criminal prosecutions, and that visibility into scrupulously fair proceedings “ensures continued acceptance of the laws by

all of the people.” Powers v. Ohio, 499 U.S. 400, 407

(1991); see McClinton v. United States, 143 S. Ct.

2400, 2402-03 (2023) (Sotomayor, J., respecting denial

of certiorari) (“the public’s perception that justice is

being done” is “a concern that is vital to the legitimacy

of the criminal justice system”).

Fifth, jury trials feed back into our democratic

system. Tocqueville called the jury trial a “gratuitous

public school ever open, in which every juror learns to

exercise his rights . . . and becomes practically acquainted with the laws of his country.” Tocqueville,

supra, at 337. And if the government is overreaching

with its prosecutorial power, jurors will carry those

concerns out into the community—and to the ballot

box when evaluating public officials based on the

criminal laws they enact and enforce.

*

*

*

The jury-trial right is so important, and so ingrained in American law, that it hardly makes sense

to speak about criminal prosecutions without trial by

jury. As this Court put it, in the federal system as in

every state, “the structure and style of the criminal process—the supporting framework and the subsidiary

11

procedures—are of the sort that naturally complement jury trial, and have developed in connection with

and in reliance upon jury trial.” Duncan, 391 U.S. at

150 n.14; see Schick v. United States, 195 U.S. 65, 82

(1904) (Harlan, J., dissenting). Conducting criminal

prosecutions without a jury is thus an affront to the

American justice system.

II. The petty-offense exception does real harm

to the core values the jury-trial right is

meant to protect.

For too long, this Court has sanctioned a departure from the unqualified right to a jury trial in criminal cases. When it comes to the jury-trial right, the

Constitution does not “hint of any difference between

‘petty’ offenses and ‘serious’ offenses.” Baldwin v.

New York, 399 U.S. 66, 74 (1970) (Black, J., concurring in the judgment). Even so, this Court decided,

initially in dicta and then in a smattering of policyoriented decisions, that “‘all crimes’ did not mean ‘all

crimes,’ but meant only ‘all serious crimes.’” Id. at 75.

The Court thus held that “petty” crimes—later defined as those punishable by up to six months in

prison, unless other circumstances suggest the offense

is sufficiently “serious”—need not be tried to a jury.

Blanton v. City of North Las Vegas, 489 U.S. 538, 54243 (1989).

This Court’s petty-offense detour not only was ill

advised, but also is doing serious damage to criminal

defendants, defense lawyers, and society as whole.

The number and variety of petty crimes punishable by

up to six months in prison are staggering. So are the

consequences facing defendants charged with petty offenses. Every day, countless defendants risk being labeled as criminals and stripped of their liberty

12

without any of the vital protections and benefits that

the jury-trial right offers.

A. Perhaps there was a time, when codebooks

were thin and crimes practically always carried severe punishments, when petty offenses would have

represented only a minor asterisk on the Constitution’s jury-trial right. But if there was such a time,

it’s long gone. Gorsuch & Nitze, Over Ruled: The Human Toll of Too Much Law 108 (2024).

Now, petty offenses are everywhere. In the federal system alone, tens of thousands of prosecutions

for petty offenses are brought each year. 2 And the

crimes swept under the label of “petty” involve everything under the sun. As this case illustrates, Pet. 8-10,

some are zany—not just operating an “[o]ver-snow vehicle” in the wrong place, 36 C.F.R. § 261.14(e), but also

walking a dog off-leash, id. § 261.8(d), failing to re-close

a gate, id. § 261.7(c), possessing a hang glider, id.

§ 261.18(b), deigning to use the image of Smokey the

Bear, id. § 261.22(a), playing baseball on a wet field, id.

§ 7.96(b)(2), fortune-telling, N.Y. Penal Law § 165.35,

or making an “unreasonable noise” while horses are

passing on a park trail, 36 C.F.R. § 2.16(f). But behind

those unusual examples are countless others, including (for instance) assault, e.g., 18 U.S.C. § 113(a)(5);

D.C. Code § 22-404(a), battery, e.g., Nev. Rev. Stat.

§ 200.481(2)(a), domestic violence, e.g., Kan. Stat. Ann.

§ 21-5414, sexual abuse, e.g., N.Y. Penal Law § 130.55;

Ky. Rev. Stat. Ann. § 510.130, threatening mass harm,

e.g., N.Y. Penal Law § 240.78, stalking, e.g., Nev. Rev.

2

E.g., Table M-2A: U.S. District Courts—Petty Offense Defendants Disposed of by U.S. Magistrate Judges, by Disposition,

During the 12-Month Period Ending September 30, 2023, at 1,

U.S. Courts (2023), https://tinyurl.com/4upa2jdx (almost 26,000

petty offenses over a 12-month period).

13

Stat. § 200.575, theft, e.g., D.C. Code § 22-3212(b), driving under the influence, e.g., 36 C.F.R. § 4.23(a), possessing a controlled substance, e.g., D.C. Code

§ 48-904.01(a)(2)(B), elder abuse, id. § 22-933, and animal cruelty, id. § 22-1001(a)(1).

B. Convictions for petty offenses carry serious

consequences. Take simple assault, a petty offense in

Washington, D.C. Fretes-Zarate v. United States, 40

A.3d 374, 378 (D.C. 2012). In the 2010s, there were

over 6,000 convictions for simple assault; the median

prison sentence imposed was three months, and over

25% of convicted defendants received six months in

prison. 3 Or take possession of a controlled substance,

another petty offense. Mitchell v. United States, 683

A.2d 111, 114 (D.C. 1996). In that same period, there

were over 9,000 convictions; the median sentence was

two months, and over 25% of those convicted received

more than four months in prison. 4 For just those two

offenses, then, thousands of people spent months and

months incarcerated—all without having had the criminal charges against them put to a jury of their peers.

The jail time defendants face in petty-offense

prosecutions also isn’t capped at six months. This

Court has held that there is no right to a jury trial

even where a defendant is charged with multiple petty

offenses for which terms of incarceration can be made

consecutive. Lewis v. United States, 518 U.S. 322, 330

(1996). Defendants have thus had to stare down the

possibility of jail time extending well beyond six

months, but without the protections that the jury-trial

3

Appendix D to Advisory Group Memo #40—Last in Time

Data, D.C. Crim. Code Reform Comm’n (2021), https://tinyurl.com/4pewf9s5.

4

Ibid.

14

right affords. See, e.g., United States v. Webster, 2009

WL 2366292, at *3 (D. Md. July 30, 2009) (potential

aggregate sentence of five years); United States v.

Lambert, 594 F. Supp. 2d 676, 678, 681 (W.D. Va.

2009) (two and a half years); United States v.

Thornton, 2000 WL 732929, at *1 (9th Cir. June 5,

2000) (same); State v. Perkins, 2008 WL 4416656, at

*10 (Ohio Ct. App. Sept. 30, 2008) (same).

Judge-only convictions for petty offenses also can

subject defendants to a host of restrictions on their liberty and other onerous conditions. Among them are

forced confinement to rehab facilities, e.g., United

States v. Chavez, 204 F.3d 1305, 1309, 1315 (11th Cir.

2000), supervised release or probation, e.g., United

States v. LaValley, 957 F.2d 1309, 1312 (6th Cir.

1992), substantial fines, e.g., United States v. Clavette,

135 F.3d 1308, 1310 (9th Cir. 1998), restitution orders, e.g., United States v. Wallen, 874 F.3d 620, 626

(9th Cir. 2017), and suspended licenses, e.g., State v.

Denelsbeck, 137 A.3d 462, 464 (N.J. 2016).

The collateral consequences of petty-offense convictions can be equally, or even more, devastating.

Criminal convictions are transformational, affecting

everything from employment opportunities, e.g.,

Smith v. United States, 768 A.2d 577, 580 (D.C. 2001);

People v. Cathlin, 2022 WL 10818359, at *1 (N.Y. App.

Term Oct. 12, 2022), to child custody, e.g., Amezcua v.

Eighth Jud. Dist. Ct., 2012 WL 439405, at *1 (Nev.

Feb. 9, 2012), to the right to keep and bear firearms,

e.g., Chavez, 204 F.3d at 1314, to mandatory sex-offender registration, e.g., Rauch v. United States, 2007

WL 2900181, at *3 (E.D. Cal. Sept. 28, 2007), to immigration consequences, e.g., United States v. MouretRomero, 2019 WL 1166951, at *3 (S.D. Cal. Mar. 13,

2019), to eligibility for benefits, e.g., Foote v. United

15

States, 670 A.2d 366, 372 (D.C. 1996), to exposure to

harsher sentences for future offenses, e.g., United

States v. Thomas, 833 F. App’x 782, 788 (11th Cir.

2020) (per curiam).

Nothing about this Court’s presumptive sixmonth line tracks those dramatic consequences.

Blanton, 489 U.S. at 542-43. Even a few weeks in

prison can spell the difference when it comes to keeping an apartment, holding down a job, or maintaining

child custody. And many of the most serious consequences for defendants convicted in judge-only trials

stem from the judgment of conviction, not from the exact length of time a person may spend in prison.

Not least among the costs of this Court’s pettyoffense exception is the opprobrium facing those convicted by lone judges. A criminal conviction, even for

a petty offense, carries real social stigma, which the

internet has made inescapable and permanent. King,

Juries, Democracy, and Petty Crime, 24 U. Pa. J.

Const. L. 817, 836-37 (2022). And there’s no reason to

think that a defendant convicted in a petty-offense

prosecution, which “bears all the indicia” of traditional criminal process except for the lack of a jury,

Baldwin, 399 U.S. at 76 n.2 (Black, J., concurring in

the judgment), would escape that stigma. Whether for

a petty or a serious crime, a conviction becomes part

of a defendant’s record and follows him in all personal

and professional endeavors.

In embarking on its petty-offense experiment, the

Court posited that some minor offenses would have a

“moral quality [that] is relatively inoffensive.” District

of Columbia v. Clawans, 300 U.S. 617, 625 (1937).

Maybe “selling secondhand property without a license,” ibid., or hawking unstamped oleomargarine,

Schick, 195 U.S. at 67, fit that description. But assault,

16

sexual abuse, driving under the influence, domestic

violence, drug possession, or any other of the untold

offenses lumped under the “petty” label don’t. Supra

pp. 12-13. Across the country, defendants face the

life-altering possibility of being branded as a criminal

based on the decisions of a single judge.

C. Carving out petty offenses from the Constitution’s unqualified language undermines each of the

values that the jury-trial right serves.

For one thing, the structural limitation the right

imposes on government power is no less vital when it

comes to petty offenses. The Framers weren’t concerned only with major or sufficiently serious oppression; they set out to “prevent oppression,” full stop.

Duncan, 391 U.S. at 155-56. And given this Court’s

decision in Lewis and the considerable flexibility the

government enjoys in crafting criminal charges, 518

U.S. at 336 (Kennedy, J., concurring in the judgment),

prosecutors often will be able to use multiple petty

charges to put the same amount of pressure on criminal defendants as would result from a traditional “serious” charge.

For another, the “hedge” that the jury-trial right

provides against overzealous prosecutors and desensitized judges, Taylor, 419 U.S. at 530, is just as (if not

more) vital when it comes to petty offenses. Petty offenses capture an enormous range of professional and

personal conduct, leaving fertile ground for boundarypushing charges. See, e.g., D.C. Crim. Code Reform

Comm’n, First Draft of Report #51—Jury Demandable Offenses 9 (2020), https://tinyurl.com/4bb47x4w

(non-jury petty offenses “distort[] charging practices

by incentivizing the prosecution of lower charges that

do not fully account for the facts of a case”); see also

Erlinger, 602 U.S. at 832 (discussing concern with

17

“‘pretended offenses’”). And because they are so frequently prosecuted and capped at six months, petty

crimes likewise raise a serious possibility of judicial

desensitization.

For still another, the salutary benefits of the jurytrial right apply equally to prosecutions for petty offenses. Collaborative decision-making by members of

the community remains a sounder basis on which to

convict and imprison a defendant than “the more tutored but perhaps less sympathetic reaction of the single judge.” Duncan, 391 U.S. at 156. If anything,

petty-offense prosecutions especially benefit from a

jury’s common-sense view. Many petty offenses involve conduct that is expressive, controversial, or

likely to be undertaken by vulnerable or disfavored

groups. See, e.g., D.C. Code § 22-405.01 (resisting arrest); 40 U.S.C. § 5104(e)(2)(G) (demonstrating in a

Capitol building); N.Y. Penal Law § 240.10 (unlawful

assembly); D.C. Code § 22-2302 (panhandling); id.

§ 22-3302(a)(1) (unlawful entry on property); id.

§ 22-3312.01 (defacing property). To protect against

government overreach in the way the Framers intended, such crimes should be tried to a jury, which

can draw from a broader set of views and experiences.

Plus, if jury participation is democratic participation, then it’s all the more vital to protect the right,

because petty offenses now span virtually every arena

of government regulation. Supra pp. 12-13. Continuing to rope off these offenses in judge-only prosecutions will only keep people in the dark and undermine

public faith in the criminal law.

18

III. There are no sound reasons to maintain

the petty-offense exception.

The petty-offense exception has no place in our

law and deprives defendants of essential protections.

Overruling the exception as petitioner requests will

restore those protections, with massive benefits and

minimal costs beyond those the Constitution requires.

A. Dispensing with the petty-offense exception

will prove invaluable not only by restoring the rights

of criminal defendants, but also by bringing an end to

endless, wasteful litigation. This Court has called the

standard governing petty offenses “somewhat imprecise.” Blanton, 489 U.S. at 543. That’s an understatement: identifying which offenses are petty and thus

beyond the Constitution’s jury-trial right has proved

“unworkable.” Janus v. Am. Fed’n of State, Cnty. &

Mun. Emps., 585 U.S. 878, 922 (2018).

Because the six-month line this Court drew is only

presumptive, courts have been sucked into endless

line-drawing exercises to determine whether the circumstances surrounding a crime punishable by six

months or less “reflect a legislative determination

that the offense in question is a ‘serious’ one.” Blanton, 489 U.S. at 543. Courts have debated, for instance, whether a license-suspension punishment tips

a crime into the “serious” bucket depending on how

long the suspension lasts. See, e.g., Landry v. Hoepfner, 840 F.2d 1201, 1216 (5th Cir. 1988) (en banc) (60

days); Denelsbeck, 137 A.3d at 464 (10 years); Richter v. Fairbanks, 903 F.2d 1202, 1205 (8th Cir. 1990)

(15 years). They’ve similarly grappled with the point

at which fines become sufficiently hefty to warrant a

jury trial. See, e.g., United States v. Soderna, 82 F.3d

1370, 1379 (7th Cir. 1996) ($10,000); Clavette, 135

19

F.3d at 1310 ($25,000); United States v. Donovo, 2002

WL 1874838, at *1 (D. Alaska Aug. 7, 2002) ($100,000).

Courts have struggled not just with the penalties

for each offense, but also with the circumstances of

each defendant who asserts a jury-trial right. Some,

for instance, have determined that a defendant’s noncitizen status can trigger the right when conviction

would subject him to removal. E.g., People v. Suazo,

118 N.E.3d 168, 182 (N.Y. 2018); Bado v. United

States, 186 A.3d 1243, 1252 (D.C. 2018). And more

broadly, the Court’s test for determining what constitutes a “petty” offense has come under fire as a “subjective, defendant-specific inquiry” that provides little

in the way of clarity or predictability. E.g., King, supra, at 818, 841.

Again and again, the current petty-offense standard—itself the Court’s best effort to bring order to an

“ill-defined, if not ambulatory,” category, Duncan, 391

U.S. at 160—has “defied consistent application.”

Payne v. Tennessee, 501 U.S. 808, 830 (1991). Courts

have disagreed, for instance, about whether the following consequences are enough to tip the scales from

“petty” to “serious”:

•

Sex-offender registration: compare Fallen v.

United States, 290 A.3d 486, 499 (D.C. 2023)

(yes), and People v. Wrighton, 918 N.Y.S.2d

724, 725 (App. Div. 2011) (yes), with Rauch,

2007 WL 2900181, at *3 (no), and Ivy v. United

States, 2010 WL 1257729, at *2 (W.D. Ky.

Mar. 26, 2010) (no).

•

Deportation: compare Suazo, 118 N.E.3d at

175 (yes), and Bado, 186 A.3d at 1252 (yes),

with Mouret-Romero, 2019 WL 1166951, at *3

20

(no), and United States v. Singh, 2020 WL

5500232, at *4 (S.D. Cal. Sept. 11, 2020) (no).

•

Loss of firearm rights: compare United States v.

Smith, 151 F. Supp. 2d 1316, 1318 (N.D. Okla.

2001) (yes), and Andersen v. Eighth Jud. Dist.

Ct., 448 P.3d 1120, 1124 (Nev. 2019) (yes), with

United States v. Snow, 2011 WL 5025535, at

*3 (D. Or. Oct. 21, 2011) (no), Chavez, 204 F.3d

at 1309, 1315 (no), and United States v.

Combs, 2005 WL 3262983, at *3 (D. Neb.

Dec. 1, 2005) (no).

No one benefits from this never-ending uncertainty—not the defendants whose rights are on the

line, not the governments whose prosecutions get

tied up in threshold questions, and not the courts

struggling to weave their way through a standardless

morass. Correcting course and overruling the pettyoffense exception will eliminate all need for these

petty-or-serious detours.

B. Despite this Court’s petty-offense misadventure, states around the country have long guaranteed

jury trials even for petty offenses—with no indication

that doing so has proved unmanageable.

Most states are already doing what the Constitution requires. Thirty-five states provide jury trials for

virtually all offenses even when they’re “petty.” 5

Three more provide the right to a de novo jury trial on

appeal. 6 And three more on top of that provide jury

trials for at least some offenses that would be petty

5

Memorandum from D.C. Crim. Code Reform Comm’n to

Code Revision Advisory Grp. app. A (Feb. 25, 2020), https://tinyurl.com/yr8t7z4c.

6

Ibid.

21

under federal law. 7 From California to Texas, Florida

to New York, Michigan to Alabama, Tennessee to

Washington—all are permitting petty offenses to be

tried to a jury. “The experience of the majority of

states” shows that providing jury trials for all crimes,

as the Constitution demands, “is workable and affordable.” King, supra, at 851.

Part of the reason the sky hasn’t fallen in those

states is that the jury-trial right doesn’t produce an

actual jury trial in many or even most cases. The vast

majority of cases, of course, end by plea bargaining.

Defendants are leery of the “trial tax”—a harsher sentence for anyone “who insists on empaneling a jury”

and is later convicted, King, supra, at 851—and are

eager to secure a favorable deal rather than face the

risks and humiliations of trial. And there’s no indication that the rate of plea bargaining would change if

petty-offense prosecutions moved from bench to jury

trials. For instance, over the 12-month period ending

in September 2023, of nearly 26,000 prosecutions for

petty offenses resolved by federal magistrate judges,

just under 200 (about 0.8%) were resolved through a

bench trial. 8 Over the same period, magistrate judges

disposed of over 3,500 Class A misdemeanor prosecutions involving crimes punishable by over six months

(and thus subject to the jury-trial right under current

law), 18 U.S.C. § 3559(a)(6)—yet only 8 (about 0.2%)

of those prosecutions resulted in a jury trial. 9

7

Ibid.

Table M-2A, supra, at 1.

9

Table M-1A: U.S. District Courts—Class A Misdemeanor Defendants Disposed of by U.S. Magistrate Judges, by Type of Disposition, During the 12-Month Period Ending September 30, 2023,

at 1, U.S. Courts (2023), https://tinyurl.com/2tkjcyhd.

8

22

But even though jury trials would be rare for petty

offenses, the right to a jury trial would remain paramount. For cases resolved by plea, the jury-trial right

wouldn’t stand in the way—but it would ensure that

criminal defendants get appropriate value for what

they are bargaining away. And trial by jury would be

available precisely where it’s most needed: close

cases, situations involving government overreach or

arbitrary abuses of power, and circumstances where

prevailing community standards may not support a

conviction. That is the role the Framers intended the

jury-trial right to play.

*

*

*

Ultimately, whatever minor disruptions result

from overruling the petty-offense exception are the

necessary result of the balance the Framers struck

long ago. “[A]dministrative conveniences” and freeflowing balancing of the “disadvantages” of criminal

convictions against “the benefits that result from

speedy and inexpensive nonjury adjudications,” Baldwin, 399 U.S. at 73 (plurality opinion), are no justification for flagrant violations of one of the Constitution’s most cherished rights, Ramos, 590 U.S. at 89;

see id. at 94, 99 (rejecting “breezy cost-benefit analysis” about whether “unanimity’s costs outweigh its

benefits”). As Justice Black put it, “[t]hose who wrote

and adopted our Constitution and Bill of Rights engaged in all the balancing necessary.” Baldwin, 399

U.S. at 75 (opinion concurring in the judgment). Here,

too, there is no reason to “perpetuate something we all

know to be wrong” based on the potential “consequences of being right.” Ramos, 590 U.S. at 111 (plurality opinion).

23

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Jeffrey T. Green

Co-Chair, AMICUS COMMITTEE

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1600 L Street, N.W.

Washington, DC 20036

Olivia Goldberg

John Seidman

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, DC 20036

Matt Aidan Getz

Counsel of Record

Kahn A. Scolnick

Patrick J. Fuster

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Ave.

Los Angeles, CA 90071

(213) 229-7754

mgetz@gibsondunn.com

Counsel for Amicus Curiae

January 15, 2025