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April 17, 2018

Is Justice Gorsuch ready, willing, and eager to blow up the civil/criminal divide?

Justice Neil Gorsuch served as the swing vote and issued quite an interesting concurring opinion this morning in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here).  Various aspects of Judge Gorsuch's opinion may merit commentary, but the question in the title of this post was my reaction to his various comments about civil sanctions and criminal punishments.    Though many constitutional doctrines make critical and consequential distinctions between civil sanctions and criminal punishments, Justice Gorsuch seemingly does not think there is much "there there."  Here are the passages that I found especially striking in this regard:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments.  Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.  Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes — and often harsher than the punishment for felonies....

My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty.  But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions.  Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?  I can think of no good answer.

I find heartening Justice Gorsuch's obvious disaffinity for watered-down procedural rights (too) often applied to severe "civil" sanctions, and I think litigators challenging these kinds of sanctions can and should be sure to cite this concurring opinion along the way.

April 17, 2018 at 02:45 PM | Permalink


Doug, I am looking forward to reading Justice Gorsuch's opinion. The line between civil and criminal is now totally blurred.

The ambiguity is of major consequences when "three strike enhancements" are added into the mix.

Here is one example of the current status. My client was convicted of Possession of Firearm by a Felon, with habitual felon enhancement. Because the prior conviction predated the prohibition of possessing a gun in one's home, I argued an Ex Post Facto violation. State v Doug Whitaker. I lost the case because the NC Supreme Court said Possession of Firearm by Felon is not criminal punishment, it is a "civil regulatory measure," which is not subject to Ex Post Facto principles.

So, on my next case, I thought, "all right" If Possession of Firearm by Felon is civil in nature, it can't serve as a trigger or strike for habitual felon, since it is not a substantive crime. I lost that case too, in the North Carolina Court of Appeals, because Possession of Firearm by Felon is a substantive felony!!


Posted by: bruce cunningham | Apr 17, 2018 3:08:27 PM

I'll be interested if the dis affinity for formalism on display here turns up elsewhere.

Posted by: John | Apr 17, 2018 3:42:15 PM

Replace the NC court with those who can rule consistently☠


*Just Another Guy

Posted by: Docile the Swamp Guy in Oregon | Apr 17, 2018 3:45:43 PM

I said on this very blog more than a decade ago (in the context of sex offenders and civil commitment) that I thought the civil/criminal divide was morally unsustainable. I am glad to see that get some traction in the halls of the Court. There is only one cause of government action and that is POWER. The whole idea of "civil" sanctions is an end run around the Constitution. And in saying that I don't necessarily see that as a better or worse for defendants. From my view it is about legitimacy. The government should be forced to put on the record its reasons for its use of power.

"Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer."

That is exactly right.

Posted by: Daniel | Apr 17, 2018 4:18:51 PM

Deported or unable to do certain businesses? I kinda see a dividing line. Civil and criminal is treated differently in a range of cases. Crime is singled out in the very constitutional text. How far will we make it irrelevant?

Posted by: Joe | Apr 17, 2018 4:37:56 PM

At the risk of making this overly complicated, or real simple depending on your point of view, I would comment that this is an area that implicates my longtime question of "what is the nature of a prior conviction." Element of crime or not.

The trouble is Failure to Register as a Sex Offender necessarily includes a prior conviction as an "element." Possession of Firearm by Convicted Felon necessarily includes a prior conviction as an "element."

Usually the "civil offenses" are violations of regulations applicable to people who have been convicted of a prior crime, which puts them in a special status.

In the abstract I can differentiate punishments for violating a civil regulation, as a type of "contempt of court." The person is told not to possess a gun any more. If he does, then he has violated a "condition \" of his previous conviction, not committed a new felony.

As an illustration, I firmly believe that the charge of Possession of Firearm by Convicted Felon cannot be joined for trial with Robbery with a Dangerous Weapon, because the first charge is civil in nature and the second charge is a crime in the Sixth Amendment sense. Therefore, one is triable before a jury and the other is heard without a jury. Because the Sixth Amendment applies, by its terms, only to "criminal prosecutions. Since trying some one for PFBF is "civil", according to our Supreme Court, then there is no right to a jury trial under the Sixth.

I should probably keep quiet until I read Gorsuch's opinion.


Posted by: bruce cunningham | Apr 17, 2018 5:26:04 PM

This may end up being an example of be careful what you wish for. From the opinions, it seems that both Justice Gorsuch and Justice Thomas would do away with the civil-criminal divide. Justice Gorsuch because he believes that certain protections should also apply to civil case. Justice Thomas because he believes that certain protections should apply to neither civil nor criminal cases. If removing the distinction leads to a watering down of fundamental rights in criminal cases while only giving a narrow band of new constitutional protections in civil cases, that is not necessarily something that would be a net improvement on civil liberties.

Posted by: tmm | Apr 17, 2018 6:03:51 PM


I'm perverse because I keep trying to talk sense to someone who is nothing more than a partisan hack. Once upon a time in the distant past of the pre-1990s liberals used to claim that government legitimacy depended on "the giving and taking of reasons". It was this that separated government from mob rule or anarchy. Today, liberals only think that conservatives need to give reasons because everything liberals do is perfect by definition. It is ironic in the extreme that what liberals once took to be a bedrock of political order is now only for the crazy right wing kooks to defend.


Posted by: Daniel | Apr 17, 2018 6:17:32 PM

Title: Professor Berman, please, use the Oxford comma. To do otherwise is just uncivilized.

Posted by: Publius | Apr 17, 2018 8:14:01 PM

Because you asked so nicely, Publius....

Posted by: Doug B | Apr 18, 2018 12:33:35 AM

And yet punitive damages get more scrutiny than criminal sentences. See Jeffrey L. Fisher, The Exxon Valdez Case and Regularizing Punishment, 26 Alaska L. Rev. 1 (2009).

Posted by: APD | Apr 18, 2018 7:03:24 AM

I really, really, really don't want to like Gorsuch.

But damn, his concurring opinion slaps.

Posted by: Guy Hamilton-Smith | Apr 18, 2018 8:53:37 AM

"everything liberals do is perfect by definition"

Daniel, not trying to sound patronizing here, but I respect you disagree with me on various things, but this level of strawman is hard to take seriously.

Posted by: Joe | Apr 18, 2018 8:01:50 PM

I believe under common law civil refers to contractual obligations and criminal deals with harm or damage to person or property. It may be true that a felon cannot possess a firearm, though I disagree with the constitutionality of the idea, however there should be a process in place, such as expungement, that would allow the citizen to pay their dues, have their felon status removed from their record, and reinstitute their rights, particularly if the so called "felony" caused no harm or damage to anyone or anyone's property.

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Posted by: AG | Apr 19, 2018 2:41:09 AM


"but this level of strawman is hard to take seriously."

and yet you raise no complaint about the obvious exaggeration in my phrase "crazy right wing kooks"...

As I said, you are a partisan hack. Gorsuch and I might not share many of the same ideals but I respect the fact that he is an idealist and he follows those ideals wherever it leads him, instead of hewing to party lines.

Posted by: Daniel | Apr 19, 2018 11:15:31 AM

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