Wednesday, July 11th, 2018

Judge Kavanaugh on Criminal Law: Bad News Except…

Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence.  The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice Alito.”

There are, however, a few glimmers of hope:

  • Concurring in an opinion reversing a murder conviction for faulty jury instructions, Judge Kavanaugh explained that, notwithstanding the defendant’s “heinous crime,” he was “unwilling to sweep under the rug” that the instructions left the jury with an incorrect understanding of the mens rea requirements governing second-degree murder and manslaughter. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016).
  • In a concurring opinion affirming false statements conviction under 18 U.S.C. § 1001, Judge Kavanaugh cautioned that “§ 1001 prosecutions can pose a risk of abuse and injustice” because the statute “applies to virtually any statement an individual makes to virtually any government official.” Judge Kavanaugh went on to caution that [p]roper application of statutory mens rea requirements and background mens rea principles can mitigate the risk of abuse and unfair lack of notice in prosecutions under § 1001 and other regulatory statutes.” United States v. Moore, 612 F.3d 698, 710 (D.C. Cir. 2010).
  • “Emphatically” dissenting to an en banc opinion, Judge Kavanaugh wrote that the majority was “sincerely mistaken” to hold that 18 U.S.C. § 924(c) does not require the government to prove a defendant knew that a weapon was automatic to obtain a 30-year mandatory minimum for using such a gun. United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012).
  • And, most promising of all, concurring in a denial of rehearing en banc, Judge Kavanaugh expressed frustration with the fact that judges are permitted to enhance defendants’ sentences on the basis of acquitted conduct: “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.” United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015).

At a glance, the through-line in these opinions (except the once concerning acquitted conduct) is a deep faith in the role of traditional mens rea principles in safeguarding due process rights. It’s not much, but it’s something!

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