« SCOTUS considering cases involving sentencing and collateral consequences in coming days | Main | SCOTUS grants cert on (yet another) AEDPA habeas procedure case »

February 27, 2017

Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?

The question in the title of this post is prompted by this recent National Review commentary authored by C. Jarrett Dieterle and headlined "Gorsuch v. Over-Criminalization." Here are excerpts:

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.”...

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 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....

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.... “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.

February 27, 2017 at 10:21 AM | Permalink


I have repeatedly proposed a desuetude constitutional amendment. Any law, regulation or policy not prosecuted for one year makes that rule repealed or void. If a legislature finds an unprosecuted law beneficial, let them re-enact the law against tearing off a mattress tag.

This infinite number of rules is itself a crime, of rent seeking. It was the business model of the Inquisition 1.0, that lasted 700 years and paid for the Vatican. We are now in Inquisition 2.0, and wasting a $trillion of the legal profession thieving. Rent seeking should be criminalized. You would, of course, see thousands of prosecutions a year, especially after repealing the self dealt immunities of legislators and of executive branch regulators. To deter.

Posted by: David Behar | Feb 27, 2017 1:37:02 PM

The mattress tag law, like so many other laws, we can blame on the free market: greed. In this context, it was because businesses were stuffing mattresses with old rags and such stuffing, possibly infected from hospitals, and selling them as new.

LiveScience has the details. Why Do Mattresses Have 'Do Not Remove' Tags?

Posted by: George | Feb 28, 2017 3:05:21 AM

George. Thank you. When was that practice a problem? Like the 1800's?

Compare the benefit of the lawyer bullying and criminalized tag to publicized consumer organization testing and consumer ratings.

If you are about to eat, do not read the next sentence.

A used mattress is 10 pounds heavier than the same mattress new.

Posted by: David Behar | Feb 28, 2017 6:15:54 AM

One of these days, perhaps the rule of lenity will stumble into a Texas courtroom.

Posted by: MarK M. | Feb 28, 2017 2:51:33 PM

Mark. Would you support an amendment mandating desuetude, wiping out thousands of laws, regulations and policies a year? Or, would that adversely affect defense lawyer employment? Does your job depend on over-criminalization, and you secretly support it?

Posted by: David Behar | Feb 28, 2017 8:25:48 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB