Law & the Courts

Gorsuch v. Over-Criminalization

(Photo: Juan Moyano/Dreamstime)
The Supreme Court nominee has been a sharp critic of the rapid expansion of the criminal code.

Much of the media attention to date surrounding President Trump’s Supreme Court nominee Neil Gorsuch has centered on the judge’s views of originalism, separation of powers, administrative law, and related topics. Largely overlooked has been an area where Judge Gorsuch’s track record shows a keen awareness of another issue critical to the federal courts: America’s criminal-justice system.

The importance of criminal law is underscored by the breathtaking size of the federal criminal code. Nearly 5,000 federal crimes are on the books, not including the sort of regulatory crimes that likely push the number above 300,000. Worse yet, many criminal laws are written in vague terms that fail to clearly identify what constitutes a crime, leaving Americans in the dark about whether their conduct in many cases is criminal.

In a 2013 lecture for the Federalist Society, Gorsuch confronted the problem of over-criminalization, whereby criminal laws target conduct that is not inherently wrong. Using examples of obscure crimes, such as ripping off a mattress tag, Gorsuch argued that no American can possibly comprehend all the activities prohibited by federal law. “Without written laws, we lack fair notice of the rules we must obey,” as he puts it, adding that fair notice is also lacking when we have “too many written laws.” In other words, it’s unreasonable to expect Americans to be aware of thousands of laws, much less stay on the right side of them.

Gorsuch’s expressions of concern about over-criminalization haven’t been confined to speeches. In last year’s Caring Hearts Home Services v. Burwell decision, he had harsh words for a federal agency that forgot its own regulations and misapplied them to a home health-care provider. Gorsuch chastised the agency, noting that it “issues literally thousands of new or revised guidance documents every single year,” making it nearly impossible to know which regulations apply at any given time. He rhetorically asked: If the government itself, “the very ‘expert’ agency responsible for promulgating the law,” cannot keep its own laws straight, how can the general public?

Gorsuch has equally strong views on the issue of criminal intent. Under traditional common law, acting with mens rea (a guilty or criminal mind) is a core component of committing a crime. This understanding prevents individuals who inadvertently or accidently do something wrong from being branded criminals.

In United States v. Games-Perez (2012), the government charged a defendant under a law that made it illegal to “knowingly” possess a gun if you were previously convicted of a felony. The defendant claimed he lacked the necessary criminal mindset to be found guilty because he lacked knowledge of his previous felony conviction. Gorsuch sided with the defendant, arguing that the defendant had to know both that he possessed a gun and that he was a felon. Although overruled by his colleagues, in his dissent he took a principled stand to ensure that only those who truly intend to break the law are targeted.

Gorsuch also has shown willingness to rely on another historical judicial doctrine, the “Rule of Lenity”: Courts that confront ambiguous and vague criminal statutes are urged to interpret those laws in favor of defendants. Gorsuch applied this rule — also a favorite of the late Justice Antonin Scalia — in United States v. Rentz (2015), a case involving a law that imposed heightened penalties on individuals who “use” a gun to commit a violent crime or drug offense. Although the defendant in the case had “used” his gun only once, he had managed to kill two people, resulting in, the government argued, two separate violations of the law. In the majority opinion, Gorsuch engaged in a painstaking textual analysis of the law — he famously diagrammed a sentence — before invoking the Rule of Lenity to hold that the defendant had committed only a single violation (a finding that reduced his sentence).

“Our job is always in the first instance to follow Congress’s directions,” Gorsuch wrote. “But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.”

Gorsuch’s principle that any “tie” should go to citizens over the government shows his wariness of the vast powers possessed by prosecutors in an over-criminalized society. His tendency to view criminal laws, especially vague ones, with a healthy measure of skepticism should give opponents of over-criminalization a much-needed ally on the nation’s highest court.

C. Jarrett Dieterle is the director of commercial freedom and a senior fellow at the R Street Institute.

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