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February 1, 2017

Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues

Leon Neyfakh has this piece at Slate of note headlined "Unlike Trump, Neil Gorsuch Has Shown Flickers of Humanity on Criminal Justice Issues." Here are excerpts:

Donald Trump got himself elected in part by acting not just tough on crime but merciless. The guy loves the police and hates anyone who’s even been accused of breaking the law—thinks they’re disgusting and dangerous and don’t deserve an inch of sympathy no matter the circumstances of their offense. This is what it means to be strong in Donald Trump’s mind—a reflection, it has been persuasively argued by historian Rick Perlstein, of the formative years he spent fearing for his life in New York during the bad old 1970s and ’80s.

So it comes as something of a surprise that his pick for the Supreme Court, Neil Gorsuch, has a judicial track record dotted with flashes of humanity when it comes to issues of criminal justice. There’s the time he dissented from his colleagues about whether it was right for a school police officer to handcuff and arrest a seventh-grader for burping in class. (“My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”)

There’s the time he argued it was unfair to hold a guy responsible for failing to follow a law he didn’t know he was breaking, a dissenting opinion that began: "People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land."

Maybe my expectations have sunk too low since Inauguration Day, but even just the premise of those sentences — that putting someone in prison is undesirable and that putting someone in prison who doesn’t deserve to be there is more likely unfair than fine — feels somewhat reassuring.

Also reassuring: a speech Gorsuch gave in 2006 that was being highlighted Tuesday night by the folks at Right on Crime, an organization of conservatives who support criminal justice reform. In that speech, Gorsuch mostly applied his soon-to-be-famous verve to the conservative parlor game of mocking silly federal statutes (“Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too”). But he also said something that betrays an awareness of just how dangerous it is for prosecutors — federal and otherwise — to enjoy so much discretion that they can pretty much punish anyone they want: “What happens to individual freedom and equality,” Gorsuch asked, “when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

But lest you think Mr. American Carnage has chosen a nominee who is some kind of soft-hearted criminal-coddler, consider the Gorsuch decisions flagged Tuesday by Igor Volsky from the Center for American Progress. One of them has Gorsuch declining to provide relief to a defendant who got life in prison without parole because his lawyer threatened to quit his case if he took a plea bargain instead of going to trial. Several others suggest a tendency to side with police officers who have been accused of excessive force—including one who killed a man by shocking him with a Taser to the head during a chase and another who put a 9-year-old who’d stolen an iPad from his school in a “twist-lock.”

February 1, 2017 at 05:35 PM | Permalink


The masking ideology does not matter.

Harvard Law = big government expansion.

Moving to Washington DC = lawyer rent seeking culture.

Lawyer = mental cripple, with less sense than a Life Skills student in 3rd grade.

Prominent lawyer = loyalty to the hierarchy of the lawyer profession over loyalty to the nation.

Posted by: David Behar | Feb 1, 2017 6:34:43 PM

Yes, plastic causes problems that cardboard does not. Hopefully, such kneejerk comments don't lead too much to kneejerk judging. The tag comment (which concerned SELLERS) suggests it shouldn't be taken too seriously, that being a common joke, but perhaps not.

We know that various times Scalia's jurisprudence helped the defendants. So, the whole thing is somewhat dubious. Anyway, the seat should have gone to Merrick Garland; at least, he should have received "due process" so to speak. http://www.acslaw.org/acsblog/seat-merrick

Posted by: Joe | Feb 2, 2017 6:38:24 AM

All regulations are lawyer quackery until proven otherwise. Lawyer quackery represents a regulatory taking, and a violation of the right to Fifth Amendment procedural due process.

All regulations should be proven to be safe and effective. They should be tested in a series of larger jurisdictions if proven and not burdened by the usual horrific unintended consequences. A calculation should be made that their benefit is at least triple the damage and cost to the economy.

The adoption of this scientific requirement would end 90% of government rules, which are all lawyer rent seeking scams, and schemes to steal from the public. Traffic lights would have to be removed.

Left wing, big government supporters would all be fired.

Posted by: David Behar | Feb 2, 2017 8:31:00 AM

"One of them has Gorsuch declining to provide relief to a defendant who got life in prison without parole because his lawyer threatened to quit his case if he took a plea bargain instead of going to trial."

Gorsuch was 1000% right on that one.

Posted by: federalist | Feb 2, 2017 12:19:53 PM

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