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Opinion analysis: When a defense is just a defense

In a succinct eight-page opinion issued last Wednesday in Smith v. United States, the Court unanimously held that a defendant charged with criminal conspiracy must carry the burden to prove that he withdrew from the conspiracy: the Due Process Clause does not require the government to prove the absence of withdrawal beyond a reasonable doubt.  The defendant carries this burden whether the withdrawal merely terminates his liability for the post-withdrawal acts of his confederates, or whether it occurred outside the statute-of-limitations period, creating a complete defense to the charge.

Petitioner Smith had contended that withdrawal negates an essential element of the criminal conspiracy charge – that he was a participant in the conspiracy – and so the government must prove beyond a reasonable doubt that he did not withdraw and continued to be a member.  He argued that his case was governed by the 1975 case Mullaney v. Wilbur, in which the Court held that the defense of heat of passion upon sudden provocation, which reduces the crime of murder to manslaughter, negates the essential element of malice aforethought and, therefore, the government must prove, beyond a reasonable doubt, the absence of heat of passion.  The First, Third, Fourth, Seventh, and Ninth Circuits, in decisions dating back as far as 1981, had all agreed.  In these circuits, the government had been required to prove beyond a reasonable doubt the absence of withdrawal once the defendant has satisfied the burden of production on the issue.

In an opinion written by Justice Scalia, the Court acknowledged that the government cannot shift the burden to the defendant when a so-called affirmative defense negates an element of the crime.  However, the Court determined that the withdrawal defense to conspiracy liability does not negate an element of the crime, and that Congress is therefore free to label it an affirmative defense that the defendant must prove.  Smith thus takes its place in a long line of post-Mullaney cases in which the Court had approved of state and federal laws giving the defendant the onus to prove defenses such as extreme emotional disturbance, self-defense, insanity, and duress.  With respect to each of these, the evidence to prove the defense does not negate the elements of the crime; rather, the defense and the crime can co-exist.

The Court’s reasoning why withdrawal does not negate the membership element of conspiracy was simple and elegant.  Withdrawal from a conspiracy does not undo the defendant’s prior participation in the conspiracy. “Far from contradicting an element of the offense, withdrawal presupposes that the defendant committed the offense.”  Assistant to the Solicitor General Sarah Harrington had raised this point at oral argument, telling the Court that, “in fact, a withdrawal defense tends to confirm that a particular defendant agreed to join a conspiracy because there is nothing to withdraw from if he didn’t join,” but the Court did not seize upon it at the time.

In his opinion, Justice Scalia explained that if the defendant withdraws, he is still liable for any acts of the conspiracy prior to his withdrawal.  If he withdraws outside of the limitations period, granted, the government is barred from prosecuting him even for his pre-withdrawal participation in the conspiracy, but that does establish his innocence.  The commission of the crime within the statute of limitations period is not an element of the conspiracy offense that the government must plead in the indictment, and neither is the government obligated to prove that the defendant did not withdraw.

Having decided the Congress could constitutionally place the burden on the defendant, the Court went on to observe that Congress could, if it chose, allocate the burden to the prosecution.  The relevant statutes, however, were silent as to the assignment of the burden of proof, so the Court presumed that Congress had intended to adhere to the common-law rule that the defendant must prove affirmative defenses.  This allocation of the burden of proof “is both practical and fair” because the defendant is in the best position to prove the steps he took to sever his relationship with his confederates, whereas it would be “nearly impossible for the Government to prove the negative that an act of withdrawal never happened.”

The Court’s opinion demonstrates the occasional power and elegance of legal reasoning.  With one simple, logical proposition – that withdrawal from a conspiracy presupposes participation therein – the Court neatly disposed of an issue that had evenly divided the circuits for decades and that had seemed to baffle the Justices at oral argument in November.  This case also generates respect for attorneys like Smith’s counsel, A.J. Kramer, the Federal Public Defender for the District of Columbia, whose legal argument was strong enough to warrant the Supreme Court’s serious consideration and respectful attention at oral argument – before it ultimately went down in flames.


Recommended Citation: Gregory Massing, Opinion analysis: When a defense is just a defense, SCOTUSblog (Jan. 14, 2013, 12:18 PM),