by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In a previous Legal Update and in a post at the Locker Room blog, I provided a number reasons for thinking Neil Gorsuch will be a worthy successor to Justice Scalia on the U.S. Supreme Court. With Senate hearings on his nomination about to begin, this may be a good time to add one more reason for thinking that: Judge Gorsuch recognizes that over-criminalization is a serious problem that federal judges can and should address.
My attention was drawn to Gorsuch’s record on this issue by a recent National Review piece by C. Jarrett Dieterle. Dieterle refers to a 2013 Federalist Society lecture in which, after noting that thousands of crimes are listed in the federal statute books and that “thousands of additional regulatory crimes [are] buried in the federal register,” Gorsuch asks, “What happens to individual freedom and equality … when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?” This is exactly the right question to ask, not just at the federal level, but at the state level as well, and it’s a question that we here at the John Locke Foundation have been asking for years. (See the John Locke Foundation’s latest research on this issue: Mens Rea Reform: The Law Shouldn’t Turn Innocent People into Criminals.)
Dieterle also refers to Gorsuch’s 2016 opinion in Caring Hearts Home Services v. Burwell in which, after a review of the many mistakes and inconsistencies in the government’s own analysis of the federal rules governing reimbursement for physical therapy and skilled nursing services to Medicare patients, he observes:
This case has taken us to a strange world where the government itself — the very “expert” agency responsible for promulgating the “law” no less — seems unable to keep pace with its own frenetic lawmaking. A world Madison worried about long ago, a world in which the laws are “so voluminous they cannot be read” and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake. But whatever else one might say about our visit to this place, one thing seems to us certain: an agency decision that loses track of its own controlling regulations and applies the wrong rules in order to penalize private citizens can never stand.
This is an example of one way in which federal judges can push back against over-criminalization. Two other Gorsuch opinions referred to by Dieterle provide examples of additional ways in which federal judges can do so.
In the first of these, United States v. Games-Perez (2012), Gorsuch offers a carefully reasoned dissent in which he argues that the court should apply a fundamental (and too-often neglected) principle of Anglo-American law:
[The] “presumption” grounded in our common law tradition that a mens rea requirement attaches to “each of the statutory elements that criminalize otherwise innocent conduct.”
(For an explanation of mens rea and its role in protecting the innocent see Mens Rea Reform: The Law Shouldn’t Turn Innocent People into Criminals.)
In the final case referred to by Dieterle, United States v. Rentz (2015), Judge Gorsuch endorses, and applies, another fundamental but neglected principle of Anglo-American law: the rule of lenity. Gorsuch summarizes the rule by saying, “Our job is always in the first instance to follow Congress’s directions. But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.” By way of explanation, he adds:
The rule of lenity seeks to ensure legislatures, not prosecutors, decide the circumstances when people may be sent to prison. It seeks to ensure, too, that if a legislature wishes to attach criminal consequences to certain conduct — to deprive persons of their property, liberty, or even lives — it provides fair warning.
These examples illustrate Judge Gorsuch’s commitment to yet another ancient and neglected legal principle, namely, that, “It is better that ten guilty persons escape than that one innocent suffer.” In the interest of regulatory efficiency, progressive era reformers urged judges to reject that principle. They argued, in effect, that, “It is alright for innocents to suffer if their suffering frightens others into doing what they’re told.” Too many judges have accepted that argument. Fortunately for us, Neil Gorsuch isn’t one of them.