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October 5, 2017

"Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants"

The title of this post is the headline of this notable new Wall Street Journal article which is primarily focused on the Supreme Court oral argument yesterday in Class v. US.  Because Class is a quirky case dealing with appeal rights and because no formal opinions have been issued this Term for Justice Gorsuch to join (and because Justice Gorsuch also voted on Wednesday to vacate an injunction protecting from execution a death row defendant in Alabama), I think this WSJ headline is a bit overblown and perhaps even misleading.  But I still consider the headline revealing, as is its account of SCOTUS argument which prompted it.  Here are excerpts:

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.

Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.

Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.

According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.” Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.

A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.

A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.

Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked. “No, your honor,” Mr. Feigin said.

Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.

Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment — but not that those actions necessarily are illegal. “You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.

Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

A few prior related posts:

October 5, 2017 at 07:45 AM | Permalink


Better headline: "Gorsuch cites Constitutional amendments in agreement with leftists who sympathize with criminals who happen to be on correct side of constitutional tenets this time."

Posted by: Eric Knight | Oct 5, 2017 12:36:31 PM

Even better headline -- Liberals and Conservatives want same procedure for vastly different substantive reasons.

As I understand it, Class involves a very narrow question of the Rules of Federal Criminal Procedure. The Supreme Court long ago decided that a state (or the federal government) could opt against allowing conditional guilty pleas (i.e. pleas that permit the defendant to preserve the right to appeal a certain claim). As the federal rules allow conditional pleas, the issue before the Supreme Court is the default assumption -- i.e. who has the duty to make clear what, if anything, can be appealed after the plea. In particular, the defendant's claim involves a challenge to the validity of the statute. Since many conservatives are concerned that some aspects of federal criminal law invade powers left to the states (or some other interest that matters to conservatives), some conservatives may favor a rule that broadly allows defendants to challenge unconstitutional statutes after a guilty plea. Such a narrow exception would not significantly undermine the preference that many conservatives have for finality.

Posted by: tmm | Oct 5, 2017 1:32:51 PM

Would it be constitutional to conditional a guilty plea on not joining a union, not going on the internet (packingham), not having gay sex (lawrence), not having an abortion (roe), not voting, not being free from employer race-based discrimination?

So why could you conditional a guilty plea on giving up any other constitutional right--like judicial review? Unless some constitutional are less equal than others . . .

Posted by: Plea Bargaining with the Devil in the Details | Oct 6, 2017 12:07:49 AM

Let's say a 15-year-old black boy pleads guilty to a felony and one of the conditions is that when he gets out he has to go to a racially-segregated school (because Brown doesn't apply to felons), and if he marries a white woman he'll be eligible for the death penalty (because Loving doesn't apply to felons), and if he's found with a gun he'll be killed on site by the police (because Heller doesn't apply to felons).

Would that make total sense to you or would you suggest that constitutional rights apply to ex-felons as much as pre-felons, as the court said in Packingham?

Posted by: Loving Heller and Brown | Oct 6, 2017 12:39:36 AM

There is no constitutional right to an appeal, and a guilty plea is a waiver of certain constitutional rights -- the right to remain silent, the right to a jury trial, the right to confront witnesses (and in many states the right to vote) -- by its very nature. The invalidity of certain waivers is that they are not reasonably related to the criminal justice system, not that a plea does not involve the waiver of rights.

Posted by: tmm | Oct 6, 2017 10:57:04 AM

"There is no constitutional right to an appeal"

Yeah, and next you'll be telling me that Loving, Roe, and Lawrence were all unconstitutional judicial activism.

You're bigoted kind lost and the ninth amendment won. If the right to privacy includes gay anal sex and abortions, it certainly includes the right to an appeal.

Posted by: Loving Roe and Lawrence | Oct 6, 2017 9:43:56 PM

Loving. Judicial review is law making, even by repealing a law. It is prohibited by Article I Section 1, giving law making power to the Congress. I am sure all state constitutions have similar assignments of law making power to their legislatures.

All judicial review is in insurrection against the constitution. It is subject to, not just impeachment, but is subject to the death penalty.

If you want to legally validate the cases you listed, enact a constitutional amendment.

Posted by: David Behar | Oct 7, 2017 2:55:45 AM

Actually, Loving, the court has been clear multiple times over the years. The right to appeal is statutory. If a state or the federal government does grant the right to appeal, then it has to comply with certain due process requirements.

If you actually read the transcript from the argument, even Class concedes that a guilty plea can waive the right to appeal. The issue in this case is whether -- given that the federal rules do allow appeals from the guilty plea in some circumstances -- it should be presumed that the right to appeal at least some types of claims is preserved in the absence of a clear waiver.

p.s. I agree with you on the merits of Loving, Roe, and Lawrence. You should be very careful with ad hominem attacks that assume that you know what other commenters are thinking -- a good chunk of us on this website are practitioners

Posted by: tmm | Oct 8, 2017 10:06:41 AM

Hit post before finishing end of last sentence. A good chunk of us are practitioners simply noting our understanding of what current law is.

Posted by: tmm | Oct 8, 2017 10:08:39 AM

Is this limited to Federal procedure? If the claim is as broad as those excerpts, every client who loses a suppression motion would want to appeal after a guilty plea after they received an offer.

Posted by: Erik M | Oct 10, 2017 4:23:15 PM

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