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 AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

January 16, 2025

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Brief of Amicus Curiae in Support of Petitioner ........ 1

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 2

Argument ..................................................................... 4

I.

The Jury Trial Right Is a Key Check Against

Arbitrary Government Power .............................4

II.

The Scope of the Constitution’s Jury Trial

Guarantee Warrants Reexamination ................. 6

III. The Modern “Petty Offense” Doctrine Cannot be

Squared With the Constitution ........................ 13

IV. The Modern “Petty Offense” Doctrine Both

Exceeds and Abdicates the Judicial Role ......... 19

Conclusion ................................................................. 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................. 6, 10, 20

Baldwin v. New York,

399 U.S. 66 (1970) ......................... 2, 3, 11, 19, 20

Blakely v. Washington,

542 U.S. 296 (2004) ............................................. 5

Blanton v. City of North Las Vegas, Nev.,

489 U.S. 538 (1989) ................................. 2, 17, 19

Callan v. Wilson,

127 U.S. 540 (1888) ........................................... 14

District of Columbia v. Clawans,

300 U.S. 617 (1937) ............................... 16, 17, 19

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................... 10

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 7

Duncan v. Louisiana,

391 U.S. 145 (1968) ......................................... 5, 6

Erlinger v. United States,

602 U.S. 821 (2024) ....................................... 5, 20

iii

Ex parte Milligan,

71 U.S. (4 Wall.) 2 (1866) .................................. 10

Garza v. Idaho,

586 U.S. 232 (2019) ........................................... 13

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ................................. 7

Johnson v. Nebraska,

419 U.S. 949 (1974) ......................... 14, 15, 16, 20

Lewis v. United States,

518 U.S. 322 (1996) ........................... 5, 17, 18, 21

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........................................... 14

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................ 19

Maryland v. Craig,

497 U.S. 836 (1990) ........................................... 19

Neder v. United States,

527 U.S. 1 (1999) ............................................. 4, 7

NLRB v. Noel Canning,

573 U.S. 513 (2014) ........................................... 14

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ................................................. 8

Oil States Energy Servs., LLC v. Greene’s

Energy Grp., LLC,

584 U.S. 325 (2018) ..................................... 21, 22

iv

Parsons v. Bedford,

28 U.S. (3 Peters) 433 (1830) .............................. 4

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................. 20

Rothgery v. Gillespie Cty.,

554 U.S. 191 (2008) ............................................. 8

Schick v. United States,

195 U.S. 65 (1904) ................................. 14, 15, 16

SEC v. Jarkesy,

603 U.S. 109 (2024) ............................................. 3

S. Union Co. v. United States,

567 U.S. 343 (2012) ........................................... 13

United States v. Barnett,

376 U.S. 681 (1964) ........................................... 22

United States v. Haymond,

588 U.S. 634 (2019) ............................... 6, 7, 8, 10

United States v. Rahimi,

602 U.S. 680 (2024) ............................................. 8

Constitution

U.S. Const. art. I, § 8, cl. 10 ................................... 11

U.S. Const. art. II, § 4 ............................................ 11

U.S. Const. art. III, § 2 ......................................... 2, 8

U.S. Const. art. III, § 2, cl. 3 .................................. 10

v

U.S. Const. amend. V ....................................... 10, 11

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

Statutes

An Act for the Punishment of Certain

Crimes Against the United States, ch. 9,

1 Stat. 112 (1790) .............................................. 12

Judiciary Act of 1789, 1 Stat. 73, ch. 20, § 9 ......... 11

Rules

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

Other Authorities

Albert Alschuler & Andrew Deiss,

A Brief History of the Criminal Jury in

the United States,

61 U. Chi. L. Rev. 867 (1994).......................... 5, 6

Andrea Roth,

The Lost Right to Jury Trial in “All”

Criminal Prosecutions,

72 Duke L.J. 590 (2022) .............. 9, 10, 12, 14, 15

Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of

Legal Texts (2012)............................................... 8

Decl. of Independence (1776) ................................... 5

Federalist No. 83 ................................................ 6, 21

vi

Felix Frankfurter & Thomas Corcoran,

Petty Federal Offenses and the

Constitutional Guaranty of Trial by

Jury,

39 Harv. L. Rev. 917 (1926) .............................. 11

George Kaye,

Petty Offenders Have No Peers!,

26 U. Chi. L. Rev. 245 (1959)............ 9, 13, 14, 16

John C. Coffee Jr.,

Does “Unlawful” Mean “Criminal”?:

Reflections on the Disappearing

Tort/Crime Distinction in American

Law,

71 B. U. L. Rev. 193 (1991) ............................... 18

John D. King,

Juries, Democracy, and Petty Crime,

24 U. Pa. J. Const. L. 817 (2022) ................ 13, 14

Joseph Story, Commentaries on the

Constitution of the United States (1833) ....... 4, 7

Magna Carta (1215) ................................................. 5

Melissa Hartigan,

Creatures of the Common Law: The Petty

Offense Doctrine and 18 U.S.C. 19,

59 Mont. L. Rev. 343 (1995) ........................ 16, 21

Noah Webster, American Dictionary of the

English Language (1828) .............................. 8, 10

vii

Philip Hamburger,

Is Administrative Law Unlawful? (2014)... 12, 13

1 Samuel Johnson, A Dictionary of the

English Language (1773) .............................. 9, 10

Philip P. Pan, Landlord Faces Criminal

Charges, Washington Post (April 1,

2000),https://www.washingtonpost.com/

wp-srv/WPcap/2000-04/01/032r-040100idx.html ............................................................ 18

Sanjay Chhablani,

Disentangling the Sixth Amendment,

11 U. Pa. J. Const. L. 487 (2009) ...................... 12

Stephanos Bibas,

Judicial Fact-Finding and Sentence

Enhancements in a World of Guilty

Pleas,

110 Yale L.J. 1097 (2001) ........................... 13, 17

Timothy Lynch,

Rethinking the Petty Offense Doctrine,

4 Kan. J. L. & Pub. Pol’y 7 (1994) .......... 7, 11, 13

Vikrant P. Reddy & Jordan Richardson,

Why the Founders Cherished the Jury,

31 Fed. Sent. R. 316 (2019) ................................. 5

4 William Blackstone, Commentaries on the

Laws of England, A Facsimile of the

First Edition of 1765-1769 342 (1789)

(University of Chicago Press 1979) .......... 4, 5, 16

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open

society. Some

of

those

key

ideas

include

constitutionally limited government, the separation of

powers, and due process of law. AFPF advocates for

an array of improvements to the criminal justice

system that enhance public safety and ensure the

protection of constitutional rights. As part of this

mission, it appears as amicus curiae before federal

and state courts.

In this country, due process requires that a person

who is charged with a crime is presumed innocent

until proven guilty beyond a reasonable doubt. A

person charged with a criminal offense also has a

fundamental constitutional right to be tried by a jury

of his peers that cannot be abrogated by fiat. Basic

1 All parties have received timely notice of amicus curiae’s intent

to file this brief. Amicus curiae states that no counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

fairness to the accused demands no less. And the

Constitution brooks no exception.

SUMMARY OF ARGUMENT

One might be forgiven for thinking that in this

country, a person charged with a crime has a right to

have his guilt ascertained by a jury of his peers. After

all, the Constitution unequivocally promises—twice—

that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury,” U.S. Const. amend. VI, and that “[t]he

Trial of all Crimes . . . shall be by Jury,” U.S. Const.

art. III, § 2. But today people charged with so-called

“petty offenses” are routinely denied this fundamental

right and found guilty of crimes carrying a sentence of

up to six months in prison by a single judge.

How is this constitutionally dubious practice

possible? To be sure, a criminal defendant may

knowingly waive his right to a jury trial and choose a

bench trial. This poses no constitutional problem. And

in some circumstances, it makes good sense for a

defendant to do so. But “[m]any years ago this Court,

without the necessity of an amendment pursuant to

Article V, decided that ‘all crimes’ did not mean ‘all

crimes,’ but meant only ‘all serious crimes.’” Baldwin

v. New York, 399 U.S. 66, 75 (1970) (Black, J.,

concurring in the judgment). And today this “Court[’s]

precedents limit the jury trial right to ‘serious’

infractions punishable by six or more months of

imprisonment.” Pet. App. 24a (citing Blanton v. City

of North Las Vegas, Nev., 489 U.S. 538, 542 (1989)).

Under the modern judge-made “petty offense”

doctrine, a person charged with a criminal offense

3

carrying less than a six-month maximum prison term

does not have a federal constitutional right to be tried

by a jury of his peers. This doctrine applies even when

the accused is charged with multiple “petty offenses,”

so that his maximum exposure to imprisonment is, in

the aggregate, much longer than six months. This

means that someone can be sentenced to years in

prison without even having a right to a jury trial.

This modern doctrine has no basis in the

Constitution’s text, structure, and history. Indeed, in

its current form it is divorced even from the common

law. It is instead supported by what is essentially a

form of judicial cost-benefit analysis based on policy

considerations. As Justice Black put it, this mode of

“constitutional adjudication” is “little more than

judicial mutilation of our written Constitution.”

Baldwin, 399 U.S. at 75 (concurring). It is also wildly

unjust, elevating government efficiency over a core

constitutional right of an individual whose liberty is

on the line. This state of affairs should not stand.

“The right to trial by jury is of such importance and

occupies so firm a place in our history and

jurisprudence that any seeming curtailment of the

right has always been and should be scrutinized with

the utmost care.” SEC v. Jarkesy, 603 U.S. 109, 121

(2024) (cleaned up). So too here. To be sure, there is

some scholarly debate about how the common law

conceived “petty offenses” subject to adjudication by

summary proceedings. And the extent to which the

common law recognized an exception to the jury trial

right for petty offenses, if at all, is likewise subject to

some scholarly debate. But what is clear is that the

judge-made “petty offense” doctrine in its current form

is not only unfair to criminal defendants but

4

incompatible with originalism. See Pet. App. 29a–30a.

And whatever the proper constitutional scope of the

jury trial right, a judge-made rule that arbitrarily

draws the constitutional line at six months

imprisonment for policy reasons is not it. As Judge

Tymkovich, joined by Judge Rossman, observed in the

decision below, “the correct scope of the Constitution’s

right to a trial by jury may warrant a closer

examination by the Supreme Court.” Pet. App. 26a

(concurring). Amicus respectfully submits that this

case is an ideal vehicle to do so.

For the foregoing reasons, this Court should grant

Mr. Lesh’s Petition.

ARGUMENT

I.

The Jury Trial Right Is a Key Check

Against Arbitrary Government Power.

“The trial by jury is justly dear to the American

people.” Parsons v. Bedford, 28 U.S. (3 Peters) 433,

446 (1830) (Story, J.). The jury-trial right has been

described as “the spinal column of American

democracy.” Neder v. United States, 527 U.S. 1, 30

(1999) (Scalia, J., concurring in part, dissenting in

part). As Justice Story put it: “The great object of a

trial by jury in criminal cases is, to guard against a

spirit of oppression and tyranny on the part of rulers[.]

. . . . So long, indeed, as this palladium remains sacred

and inviolable, the liberties of a free government

cannot wholly fall.” 3 Joseph Story, Commentaries on

the Constitution of the United States § 1774 (1833).

Blackstone likewise considered “trial by jury” a

“grand” defense of liberty. 4 William Blackstone,

Commentaries on the Laws of England, A Facsimile

5

of the First Edition of 1765–1769, at 342 (1789)

(University of Chicago Press 1979). Rightfully so.

“The primary purpose of the jury in our legal

system is to stand between the accused and the

powers of the State.” Lewis v. United States, 518 U.S.

322, 335 (1996) (Kennedy, J., concurring in the

judgment). It “is no mere procedural formality, but a

fundamental reservation of power in our

constitutional structure. 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.” Blakely v. Washington, 542

U.S. 296, 305–06 (2004) (Scalia, J.). The jury-trial

right is “an inestimable safeguard against the corrupt

or overzealous prosecutor and against the compliant,

biased, or eccentric judge.” Duncan v. Louisiana, 391

U.S. 145, 156 (1968). The jury acts as “the final check

to hold all three branches accountable.” Vikrant P.

Reddy & Jordan Richardson, Why the Founders

Cherished the Jury, 31 Fed. Sent. R. 316 (2019).

“Prominent among the reasons colonists cited in

the Declaration of Independence for their break

with Great Britain was the fact Parliament and the

Crown had ‘depriv[ed] [them] in many cases, of the

benefits of Trial by Jury.’” Erlinger v. United States,

602 U.S. 821, 829 (2024) (quoting Decl. of

Independence ¶ 20). For that matter, “[e]ven before

the Declaration of Independence, the First

Continental Congress’s Declaration of Rights of 1774

had proclaimed the right to jury trial.” Albert

Alschuler & Andrew Deiss, A Brief History of the

Criminal Jury in the United States, 61 U. Chi. L. Rev.

867, 870 (1994) (citations omitted). Going back further

still, the Magna Carta likewise promised this right:

6

“No freeman shall be taken or imprisoned . . . except

by the lawful judgment of his peers or by the law of

the land.” Magna Carta ¶ 39 (1215).

Unsurprisingly, “the jury-trial guarantee was one

of the least controversial provisions of the Bill of

Rights.”2 Apprendi v. New Jersey, 530 U.S. 466, 498

(2000) (Scalia, J., concurring). As Alexander Hamilton

wrote: “The friends and adversaries of the plan of the

convention, if they agree in nothing else, concur at

least in the value they set upon the trial by jury: Or if

there is any difference between them it consists in

this; the former regard it as a valuable safeguard to

liberty, the latter represent it as the very palladium

of free government.” Federalist No. 83. Indeed, the

Framers “considered the right to trial by jury “the

heart and lungs, the mainspring and the center

wheel” of our liberties, without which “the body must

die; the watch must run down; the government must

become arbitrary.” United States v. Haymond, 588

U.S. 634, 640–41 (2019) (plurality) (citation omitted).

II.

The Scope of the Constitution’s Jury Trial

Guarantee Warrants Reexamination.

The modern “petty offense” exception to the jurytrial right eviscerates a core check against

overreaching criminal prosecutions and wrongful

convictions. “Additionally, multiple scholars have

2 “Twelve states had enacted written constitutions prior to the

Constitutional Convention, and the only right that these twelve

constitutions declared unanimously was the right of a criminal

defendant to jury trial.” Alschuler & Deiss, 61 U. Chi. L. Rev. at

870; see Duncan, 391 U.S. at 153 (“The constitutions adopted by

the original States guaranteed jury trial.”).

7

argued the Court’s doctrine is incompatible with the

original public understanding of the Constitution.”

Pet. App. 29a (collecting scholarship). These scholars

appear to have a point.

“Constitutional analysis must begin with ‘the

language of the instrument,’ which offers a ‘fixed

standard’ for ascertaining what our founding

document means.” Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 235 (2022) (quoting Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824); 1 J. Story,

Commentaries on the Constitution of the United

States § 399, p. 383 (1833)). Here, the jury-trial right

flows from the Constitution’s plain text. That text

forecloses the modern judge-made “petty offense”

balancing test.

The Constitution guarantees the right to a jury

trial in two places.3 The Sixth Amendment provides

that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury[.]”4 U.S. Const. amend. VI. The jurytrial right is also textually guaranteed in Article III

3 This constitutional guarantee is unique because it is “the only

one to appear in both the body of the Constitution and the Bill of

Rights[.]” Neder, 527 U.S. at 30 (Scalia, J., concurring in part,

dissenting in part). Indeed, “[o]ne indication of the importance

with which the founders regarded the jury trial guarantee is that

it was one of the few rights mentioned in the original,

unamended Constitution.” Timothy Lynch, Rethinking the Petty

Offense Doctrine, 4 Kan. J. L. & Pub. Pol’y 7, 8 (1994).

4 “The text of the Sixth Amendment makes clear that this is ‘a

right of the “accused” and only the “accused.”’” Haymond, 588

U.S. at 669 (Alito, J., dissenting) (quoting Akhil Amar, The Bill

of Rights 111 (1998)).

8

itself: “The Trial of all Crimes . . . shall be by Jury[.]”

U.S. Const. art. III, § 2. Those textual commands

must be followed. For “the text of the Constitution

always controls,” including “over contrary historical

practices.” United States v. Rahimi, 602 U.S. 680, 718

n.2 (2024) (Kavanaugh, J., concurring).

“Constitutional rights are enshrined with the

scope they were understood to have when the people

adopted them.” N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 34 (2022) (cleaned up). The

Constitution’s “[w]ords must be given the meaning

they had when the text was adopted[.]” Antonin Scalia

& Bryan Garner, Reading Law: The Interpretation of

Legal Texts 78 (2012).

“At the founding, a ‘prosecution’ of an individual

simply referred to ‘the manner of [his] formal

accusation.’” Haymond, 588 U.S. at 641 (plurality)

(quoting 4 W. Blackstone, Commentaries on the Laws

of England 298 (1769)); see also Noah Webster,

American Dictionary of the English Language (1828)

[hereinafter “Webster”] (defining “prosecution” as

“[t]he institution or commencement and continuance

of a criminal suit”).5 “‘Prosecution,’ as Blackstone used

the term, referred to ‘instituting a criminal suit’ by

filing a formal charging document—an indictment,

presentment, or information—upon which the

defendant was to be tried in a court with power to

punish the alleged offense.” Rothgery v. Gillespie Cty.,

554 U.S. 191, 221 (2008) (Thomas, J., dissenting)

(quoting 4 Blackstone *309).

5 https://webstersdictionary1828.com/Dictionary/prosecution

9

And the evidence is at least mixed on the original

meaning of the word “crime.”6 Although Founding-era

dictionaries indicate that in some contexts it could be

used in a narrower sense to “denote[] an offense, or

violation of public law, of a deeper and more atrocious

nature; a public wrong,” such as “treason, murder,

robbery, theft, arson, etc.,”as distinct from “minor

wrongs against public rights” characterized as

“misdemeanors,” Webster, supra (defining “crime”),7

the term also carried a general meaning. Foundingera dictionaries likewise indicate that the word

“criminal” could carry a broad meaning. See, e.g., 1

Samuel Johnson, A Dictionary of the English

Language (1773) [hereinafter “Johnson”] (defining

“criminal, adj.” as “3. Not civil: as a criminal

prosecution; the criminal law.”);8 Webster, supra

(defining “criminal, adjective” as “4. Relating to

crimes;

opposed

to

civil;

as

a criminal code; criminal law”). Cf. Apprendi, 530

6 “[P]re-Founding and Founding-era dictionaries generally take

the following approach: the term crime can be used in both broad

and narrow ways, like in Blackstone; the term misdemeanors is

sometimes colloquially referred to as separate from crimes

(crimes and misdemeanors) and other times as crimes

themselves (minor crimes lower than felonies); and the term

prosecution typically includes any criminal proceeding, whether

serious or minor.” Andrea Roth, The Lost Right to Jury Trial in

“All” Criminal Prosecutions, 72 Duke L.J. 590, 638 (2022); see

George Kaye, Petty Offenders Have No Peers!, 26 U. Chi. L. Rev.

245, 248 n.26 (1959) (“[T]he occasional restriction in meaning

noted by Blackstone is far from conclusive when that author

himself regularly employs the word ‘crimes’ in its broad sense.”).

7 https://webstersdictionary1828.com/Dictionary/crime.

8https://johnsonsdictionaryonline.com/views/search.php?term=c

riminal

10

U.S. at 501 (Thomas, J., concurring) (“a ‘crime’

includes every fact that is by law a basis for imposing

or increasing punishment”); Haymond, 588 U.S. at

641 (plurality).

Founding-era dictionaries also appear to suggest

that “all” means “all.” See Johnson, supra (defining

“All, adj.” as “1. Being the whole number; every

one.”);9 Webster, supra (defining “All” as “1. Every

one, or the whole number of particulars.”).10 “[N]ot an

unspecified subset.” District of Columbia v. Heller,

554 U.S. 570, 580 (2008). Cf. Ex parte Milligan, 71

U.S. (4 Wall.) 2, 123 (1866) (Sixth Amendment uses

“language broad enough to embrace all persons and

cases”). In short, although Founding-era “dictionaries

offer less than dispositive evidence against the petty

offense doctrine, they certainly do not offer strong

support for it,” Roth, 72 Duke L.J. at 638; at a

minimum, these sources do not appear to support this

Court’s modern approach.

Nor does the Constitution’s structure appear to

lend support to the modern doctrine. For example,

when the Framers wanted to exempt categories of

cases from the jury trial guarantee, they knew how to

do so. See, e.g., U.S. Const. art. III, § 2, cl. 3 (“the Trial

of all crimes, except in Cases of Impeachment, shall be

by Jury”); see also U.S. Const. amend. V (grand jury

required for “capital, or otherwise infamous crime[s]”

“except in cases arising in the land or naval forces”).

9

https://johnsonsdictionaryonline.com/views/search.php?term=all

10 https://webstersdictionary1828.com/Dictionary/all

11

Cf. Judiciary Act of 1789, 1 Stat. 73, ch. 20, § 9 (“[T]he

trial of issues in fact, in the district courts, in all

causes except civil causes of admiralty and maritime

jurisdiction, shall be by jury.”).

The Framers likewise knew how to differentiate

between grades of crimes. Consider the Impeachment

Clause, which refers to “Treason, Bribery, or other

high Crimes and Misdemeanors.” U.S. Const. art. II,

§ 4. Or the Piracy and Felonies Clause, which grants

Congress the power to “define and punish Piracies and

Felonies committed on the high Seas and Offenses

against the Law of Nations.” U.S. Const. art. I, § 8, cl.

10. “Those provisions suggest that when the

Convention delegates wished to distinguish between

the grades of various offenses, they knew how to do

so.” Lynch, 4 Kan. J. L. & Pub. Pol’y at 12 . So too the

Fifth Amendment’s Grand Jury Clause, which, with

exceptions, limits that right to “capital, or otherwise

infamous crime[s.]” U.S. Const. amend. V.

It is also worth noting that the Constitution, as

originally understood, gave Congress limited power to

create federal crimes. Cf. Lynch, 4 Kan. J. L. & Pub.

Pol’y at 21 n.106 (suggesting “[i]t is safe to say that

the Constitution of 1787 would not have been ratified

if the state delegates had apprehended such broad

federal powers”). “These provisions” “were written at

a time when the Federal Government exercised only a

limited authority to provide for federal offenses ‘very

grave and few in number.’” Baldwin, 399 U.S. at 76

(Burger, J., dissenting) (citing Felix Frankfurter &

Thomas Corcoran, Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury, 39 Harv. L.

Rev. 917, 975–76 (1926)).

12

There were no federal petty offenses when the

Sixth Amendment was ratified.11 See Sanjay

Chhablani, Disentangling the Sixth Amendment, 11

U. Pa. J. Const. L. 487, 549–50 (2009) (Appendix A)

(listing federal crimes and punishments); An Act for

the Punishment of Certain Crimes Against the United

States, ch. 9, 1 Stat. 112 (1790). Indeed, “[f]or most of

the country’s first century, the question of whether a

defendant charged with a petty crime has a Sixth

Amendment right to jury did not arise.”12 Roth, 72

Duke L.J. at 608. “[T]hose few federal crimes with

potential sentences of six months or less appear to

have been generally tried by jury until . . . 1888.” Id.

at 608–09 (citations omitted)

In sum, whatever the proper scope of the jury-trial

right as a matter of first principles, the Constitution’s

text, structure, and history do not appear to lend

support to the modern doctrine, including the

aggregation principle. Nor does the common law

appear to justify this Court’s modern approach, to the

11 At the Founding there “were divergent traditions about of the

right to a jury in criminal cases: There was the traditional right

to a jury in all cases, as guaranteed by Magna Carta and the

common law, but there was also the modified version of the right,

as adjusted by the recent statutes on petty offenses.” Philip

Hamburger, Is Administrative Law Unlawful? 244 (2014).

12 “Even as a matter of state law, the petty crime jury trial issue

arose infrequently before the twentieth century. By the late

1800s, only two states . . . appear to have allowed nonjury trials

by justices of the peace in criminal cases, both in cases of

petty larceny.” Roth, 72 Duke L.J. at 609–10.

13

extent it informs the analysis.13 Worse, as Petitioner

explains, the Court’s modern doctrine flows from

“precedent reached with sparse briefing and has never

been subjected to serious adversarial testing.” Pet. 13.

Whatever the answer to the question presented, this

constitutional anomaly warrants this Court’s

attention with the benefit of full merits briefing.

III.

The Modern Petty Offense Doctrine

Cannot be Squared With the Constitution.

“For well over a century, the Supreme Court has

read into the federal constitutional jury trial

guarantee an extra-textual limitation that exempts

from its coverage the majority of criminal

prosecutions.” John D. King, Juries, Democracy, and

13 To be sure, “the scope of the constitutional jury right must be

informed by the historical role of the jury at common law.” S.

Union Co. v. United States, 567 U.S. 343, 353 (2012) (cleaned up).

But the Sixth Amendment does not neatly track the common law

in all cases. Cf. Lynch, 4 Kan. J. L. & Pub. Policy at 13–14

(addressing argument that “the Sixth Amendment must be

interpreted in light of the common law, which recognized a petty

offense exception to the right to a jury trial”). For example,

“the Sixth Amendment appears to have been understood at the

time of ratification as a rejection of the English common-law rule

that prohibited counsel[.]” Garza v. Idaho, 586 U.S. 232, 260

(2019) (Thomas, J., dissenting). In any event, it appears “[t]here

is some disagreement about how the common law defined the

category of petty offenses.” Stephanos Bibas, Judicial FactFinding and Sentence Enhancements in a World of Guilty Pleas,

110 Yale L.J. 1097, 1125 n.208 (2001). And at a minimum “it is

far from evident that the common law recognized a petty offense

exception to the right to trial by jury.” Lynch, 4 Kan. J. L. & Pub.

Policy at 13 (citing Kaye, 26 U. Chi. L. Rev. at 246–47); see

Hamburger, supra, 244; Pet. 21–23.

14

Petty Crime, 24 U. Pa. J. Const. L. 817, 818 (2022). In

essence, the Court has “replace[d] the Constitution’s

text with a new set of judge-made rules to govern” the

scope of criminal defendants’ right to a jury trial.

NLRB v. Noel Canning, 573 U.S. 513, 614 (2014)

(Scalia, J., concurring in the judgment). How did this

happen?

This drift away from the Constitution’s text began

in Callan v. Wilson, 127 U.S. 540 (1888). “The notion

of a class of ‘petty offenses’ for which prosecution

would carry no right to jury trial first surfaced in this

Court in the dicta of Callan . . . , which held that a

conspiracy offense did not belong in the ‘petty’ class.”

Johnson v. Nebraska, 419 U.S. 949, 949 (1974)

(Douglas, J., dissenting from denial of certiorari). This

dicta limited the jury-trial right to “serious” crimes,

which were determined by reference to the “common

law.” Callan, 127 U.S. at 549. Cf. Loper Bright Enters.

v. Raimondo, 603 U.S. 369, 417–23, 441–48 (2024)

(Gorsuch, J., concurring) (discussing role of dicta in

judicial decisionmaking and using now-overruled

Chevron

doctrine as a cautionary tale against

overreliance on stray remarks in past decisions).

Next came Schick v. United States, 195 U.S. 65

(1904), where “the Court reaffirmed the petty offense

exception in yet another case in which doing so was

not necessary to the result and in which no party

argued against the exception.” Roth, 72 Duke L.J. at

616. “Schick was charged with violating a provision of

the Oleomargarine Act which subjected the offender

to a $50 penalty. He waived jury trial.” Kaye, 26 U.

Chi. L. Rev. at 274. And “the holding of that case was

that the defendant’s waiver of jury trial in the District

Court did not invalidate his conviction.” Johnson, 419

15

U.S. at 950 (Douglas, J., dissenting from denial of

certiorari). Nonetheless, “the Schick Court not only

reached the petty offense issue but significantly

expanded upon Callan’s dictum.”14 Roth, 72 Duke L.J.

at 617; see Schick, 195 U.S. at 68–70.

Justice Harlan—who authored Callan—dissented.

As he explained:

I am not aware of, nor has there been

cited, any case in England in which,

after Magna Charta and prior to the

adoption of our Constitution, a court,

tribunal, officer, or commissioner has,

without a jury, even in the case of a petty

offense, determined the question of

crime or no crime, when the defendant

14 The Schick Court cited Blackstone’s “definition of the word

‘crimes’” to support this expansion of the petty-offense doctrine.

See 195 U.S. at 69–70. But the majority’s discussion of

Blackstone appears incomplete. As Professor Roth observed:

[T]he Court acknowledged that Blackstone

defined both crimes and misdemeanors as “act[s]

committed, or omitted, in violation of a public

law” and described them as, “properly speaking,

. . . mere[ly] synonymous terms.” But the Court

highlighted Blackstone’s subsequent observation

that, in common usage, the term crime “denote[s]

offenses . . . of a deeper and more atrocious dye;

while smaller faults and omissions of less

consequence” are misdemeanors only.

72 Duke L.J. at 617 (citations omitted). This overlooks that

“Blackstone elsewhere in the volume declared that summary

convictions for crimes deemed petty by Parliament were unjust

deviations from the common right to jury in criminal cases.” Id.

16

pleaded

not

guilty, unless

the

authority to do so was expressly conferred

by an act of Parliament.15

Schick, 195 U.S. at 80 (Harlan, J., dissenting). “No

court at common law assumed, without a jury, to try

any offense, however trivial or petty, except under the

authority of a statute conferring authority to that

end.” Id. at 97 (Harlan, J., dissenting); see Melissa

Hartigan, Creatures of the Common Law: The Petty

Offense Doctrine and 18 U.S.C. 19, 59 Mont. L. Rev.

343, 354–56 (1995) (surveying historical evidence).

“Not until District of Columbia v. Clawans, 300

U.S. 617 (1937), did the Court squarely rule that

certain prosecutions are outside the constitutional

guarantee.” Johnson, 419 U.S. at 950 (Douglas, J.,

dissenting from denial of certiorari). In Clawans, this

Court held that the scope of the petty offense

exception should be determined “by objective

standards such as may be observed in the laws and

15 “[T]o Blackstone’s American students it would have been only

natural to regard the right to a criminal jury as a protection

generally in existence under Magna Carta except where the

positive law of Parliament or the colonial legislatures made

explicit inroads upon it.” Kaye, 26 U. Chi. L. Rev. at 247. And

according to Blackstone, “[e]xcept in cases of contempt, the

common law . . . was a stranger to the summary proceedings

authorized by acts of Parliament.” Schick, 195 U.S. at 80

(Harlan, J., dissenting) (citation omitted); see 4 Blackstone,

Commentaries c.20, 277 (“By a summary proceeding, I mean

principally such as is directed by several acts of parliament (for

the common law is a stranger to it, unless in the case of

contempts) for the conviction of offenders, and the inflicting of

certain penalties created by those acts of parliament.”).

17

practices of the community taken as a gauge of its

social and ethical judgments.” 300 U.S. at 628. The

Court assumed that “objective standard” is the

maximum prison length authorized by Congress. See

id. This reasoning thereby severed any necessary link

with the common law. See Lewis, 518 U.S. at 325–26.

It also defies common sense. As Justice

McReynolds, joined by Justice Butler, observed:

In a suit at common law to recover above

$ 20.00, a jury trial is assured. . . . [I]t

seems improbable that while providing

for this protection in such a trifling

matter the framers of the Constitution

intended that it might be denied where

imprisonment for a considerable time or

liability for fifteen times $ 20.00

confronts the accused.

Clawans, 300 U.S. at 666 (dissenting).

This Court subsequently “abandoned any attempt

to define petty offenses in terms of the common law,

instead redefining the category to include only those

crimes punishable by six months’ imprisonment or

less.” Bibas, 110 Yale L.J. at 1125 n.208 (citing Lewis,

518 U.S. at 325–28; Blanton, 489 U.S. at 543). Worse

still, in Lewis, this Court held that the petty offense

doctrine applies even when the accused is charged

with multiple petty offenses, so that his maximum

18

exposure to imprisonment is in the aggregate much

longer than six months. See 518 at 330.16

This means that “a criminal defendant may be

convicted of innumerable offenses in one proceeding

and sentenced to any number of years’ imprisonment,

all without benefit of a jury trial, so long as no one of

the offenses considered alone is punishable by more

than six months in prison.” Id. at 330–31 (Kennedy,

J., concurring in the judgment). “In many cases, a

prosecutor can choose to charge a defendant with

multiple petty offenses rather than a single serious

offense, and so prevent him . . . from obtaining a trial

by jury while still obtaining the same punishment.”

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

Cf. Philip P. Pan, Landlord Faces Criminal Charges,

Washington Post (April 1, 2000) (defendant “charged

with 12,948” petty offenses exposed to maximum

sentence of “3,192 years in prison” and “nearly $3.9

million” fine).17

16 This poses a grave threat to the liberty of “millions of persons

in agriculture, manufacturing, and trade who must comply with

minute administrative regulations, many of them carrying a jail

term of six months or less.” Lewis, 518 U.S. at 337 (Kennedy, J.,

concurring). That is because “[v]iolations of these sorts of rules

often involve repeated, discrete acts which can result in potential

liability of years of imprisonment.” Id. (Kennedy, J., concurring).

And there are an untold number of such administrative rules.

“By one estimate, there are over 300,000 federal regulations that

may be enforced criminally.” John C. Coffee Jr., Does “Unlawful”

Mean “Criminal”?: Reflections on the Disappearing Tort/Crime

Distinction in American Law, 71 B. U. L. Rev. 193, 216 (1991).

https://www.washingtonpost.com/wp-srv/WPcap/200004/01/032r-040100-idx.html.

17

19

IV.

The Modern Petty Offense Doctrine Both

Exceeds and Abdicates the Judicial Role.

This modern precedent cannot be squared with the

Constitution’s text, structure, or history. It is instead

the product of judicial cost-benefit analysis and

atextual line drawing. See, e.g., Blanton, 489 U.S. at

542–43 (“As for a prison term of six months or less, we

recognized that it will seldom be viewed by the

defendant as ‘trivial’ or ‘petty.’ But we found that the

disadvantages of such a sentence, ‘onerous though

they may be, may be outweighed by the benefits that

result from speedy and inexpensive nonjury

adjudications.’” (quoting Baldwin, 399 U.S. at 73)).

The line is drawn “by weighing the advantages to the

defendant against the administrative inconvenience

to the State inherent in a jury trial and magically

concluding that the scale tips at six months’

imprisonment.” Baldwin, 399 U.S. at 75 (Black, J.,

concurring in the judgment).

As Justice McReynolds observed in Clawans,

“Constitutional guarantees ought not to be

subordinated to convenience, nor denied upon

questionable precedents or uncertain reasoning.” 300

U.S. at 634 (dissenting). Courts simply “are not free to

conduct a cost-benefit analysis of clear and explicit

constitutional guarantees, and then to adjust their

meaning to comport with [their] findings.” Maryland

v. Craig, 497 U.S. 836, 870 (1990) (Scalia, J.,

dissenting). But that is exactly what happened here.

This policymaking project exceeds the judicial role

of “say[ing] what the law is,” Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803), as opposed to what

judges think it should be. “Such constitutional

20

adjudication, whether framed in terms of

‘fundamental fairness,’ ‘balancing,’ or ‘shocking the

conscience,’ amounts in every case to little more than

judicial mutilation of our written Constitution.”

Baldwin v, 399 U.S. at 75 (1970) (Black, J., concurring

in the judgment). “[T]he Constitution forbids th[is]

kind of line drawing[.]” Johnson, 419 U.S. at 952

(Douglas, J., dissenting from denial of certiorari).

“When the American people chose to enshrine [the

jury trial] right in the Constitution, they weren’t

suggesting fruitful topics for future cost-benefit

analyses.” Ramos v. Louisiana, 590 U.S. 83, 100

(2020). The jury-trial right “has never been efficient;

but it has always been free.” Apprendi, 530 U.S. at 498

(Scalia, J., concurring). The Constitution contains “no

efficiency exception to” this right. Erlinger, 602 U.S.

at 842. To the contrary, “[t]hose who wrote and

adopted our Constitution and Bill of Rights engaged

in all the balancing necessary. They decided that the

value of a jury trial far outweighed its costs for ‘all

crimes’ and ‘in all criminal prosecutions.’” Baldwin,

399 U.S. at 75 (Black, J., concurring in the judgment).

In so doing, “the Framers foreclosed any judicial

freedom to decide that in certain prosecutions trial by

jury is unwarranted.” Johnson, 419 U.S. at 952

(Douglas, J., dissenting from denial of certiorari).

Perversely, the petty offense doctrine not only

exceeds but also abdicates the judicial role, ceding to

the legislative and executive branches the power to

control the metes and bounds of the jury trial right

with respect to certain crimes. This “Court’s doctrine

directs the judiciary to rely primarily on the

legislative branch’s ‘judgment’ about the severity of an

offense, and, in turn, that judgment completely

21

defines the scope of the Article III and Sixth

Amendment right to a trial by jury.” Pet. App. 30a

(Tymkovich, J., concurring); see, e.g., Lewis, 518 U.S.

at 326 (“The judiciary should not substitute its

judgment as to seriousness for that of a legislature,

which is far better equipped to perform the task[.]”

(cleaned up)).

“Unique among constitutional doctrines of

interpretation, the petty offense doctrine calls for

direct legislative involvement in the determination of

a criminal defendant’s constitutional right to trial by

jury.” Hartigan, 59 Mont. L. Rev. at 348. But cf.

Federalist No. 83 (“[I]f nothing was said in the

Constitution on the subject of juries, the legislature

would be at liberty either to adopt that institution or

to let it alone. This discretion, in regard to criminal

causes, is abridged by the express injunction of trial

by jury in all such cases[.]”). This means that “the

judicial imperative of interpreting the fundamentalto-liberty jury right has been abdicated to the

legislative branch, or in this case even the executive

branch.” Pet. App. 30a (Tymkovich, J., concurring).

This judicial abdication should not stand. As

Justice Gorsuch has explained:

Ceding to the political branches ground

they wish to take in the name of efficient

government may seem like an act of

judicial restraint. But enforcing Article

III isn’t about protecting judicial

authority for its own sake. It’s about

ensuring the people today and tomorrow

enjoy

no

fewer

rights

against

22

governmental intrusion than those who

came before.

Oil States Energy Servs., LLC v. Greene’s Energy Grp.,

LLC, 584 U.S. 325, 356 (2018) (dissenting). That

observation resonates here.

“It is high time . . . to wipe out root and branch the

judge-invented and judge-maintained” modern petty

offense doctrine. United States v. Barnett, 376 U.S.

681, 727 (1964) (Black, J., dissenting). Government

efficiency should never trump individual liberty. And

this Court should enforce the Constitution’s promise

that a person accused of a crime has a right to be tried

by a jury of his peers and jettison this judicial

policymaking project. “It will be a fine day for the

constitutional liberty of individuals in this country

when that at last is done.” Id. at 727–28 (Black, J.,

dissenting).

CONCLUSION

This Court should grant Mr. Lesh’s Petition.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

January 16, 2025