• Maria Thompson

Criminal Justice Under Justice Gorsuch


Amidst a climate of deep political divide, the United States Senate confirmed Neil M. Gorsuch to be the 113th Supreme Court Justice on Friday, April 7. 2017. The ninth seat on the United States Supreme Court remained empty for fourteen months, one of the longest vacancies in Supreme Court history. Many are wondering what the new Justice Gorsuch will mean for criminal law jurisprudence. While we can look to decisions from his days as judge on the Tenth Circuit, case law does not provide a clear picture of how he will rule as he sits on the highest bench in the land.

While Neil Gorsuch sat as a judge on the Tenth Circuit, he gave a large amount of deference to law enforcement, but at times also spoke on behalf of specific defendants being denied their day in court and wrongly deprived of their liberty and freedom. Eugene Volokh of The Washington Post draws attention to Judge Gorsuch’s dissenting opinion in United States v. Games-Perez, where Gorsuch outlines his rationale behind the majority’s denial of review for a defendant convicted under 18 U.S.C. §924(a)(2), requiring the mens rea to be a “knowing” violation. Most notably, perhaps, is Judge Gorsuch’s acknowledgement that the defendant could be “wrongfully imprisoned” under an improper application of the statutory requirements without a proper showing of guilt. The ultimate guidance, he continues, is to be the law as the way it was written by the legislature. Potentially true to form for those who believe Gorsuch to be a textualist like the late Justice Scalia, he states that, “in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.”

As the Lawyers Committee for Civil Rights Under Law discuss in the “Report on the Nomination of Judge Neil M. Gorsuch as an Associate Justice of the United States Supreme Court,” Justice Gorsuch has held a wide variety of decisions in the past that are true to his reading of the statutory text, preventing one-sided favoritism for either government or defendant.

Judge Gorsuch of the Tenth Circuit seemed to employ a presumption of the government acting in good faith when deciding issues on more substantive criminal law issues. In United States v. Rutherford, Judge Gorsuch’s order denying Certificate of Appealability (COA) of a habeas claim asserts the constitutionality of the disputed 21 U.S.C. §§ 821 and 846. On appeal, defendant claims that the statutes are outside the authority of the federal government and violate the Tenth Amendment, which reserves the right to monitor drug trafficking to the states. Judge Gorsuch rejects these claims and holds the statutes as part of “commerce power,” within the control of the dual sovereignty of state and federal government, which can interplay to regulate drug trafficking so long as they stay within the respective constitutional bounds.

In the realm of procedural criminal law, Judge Gorsuch erred more on the side of pro-government as is displayed in cases like Williams v. Jones. Gorsuch’s opinion was written in favor of denying hearings to claims of ineffective assistance of counsel. In Williams, the trial attorney advised the defendant not to accept a plea deal for ten-years (rather than the potential life without parole to which he was eventually sentenced). The attorney took the case to trial, lost, and the defendant was sentenced to life in prison without possibility of parole at first. The appeals court acknowledged the trial attorney’s faulty counseling and reduced the sentence to life with possibility of parole. Judge Gorsuch’s dissenting opinion asserted that there was no prejudice to the defendant under Strickland, stating that the defendant agreed to reject the plea bargain and ultimately received the lowest sentence under Oklahoma law for first-degree murder. To make a successful claim under Strickland, the defendant must be able to show that (1) the lawyer at the time was deficient in his or her representation and (2) that the defendant was prejudiced by the lawyer’s deficient behavior.

Future cases on the Supreme Court docket include Turner v. United States and Overton v. United States, which would clarify whether the prosecutor must disclose evidentiary items to the defense that could prevent a verdict of “not guilty,” according to the National Constitution Center. There are also pending petitions for Carpenter v. US regarding a warrantless search of a cell phone and Salazar-Limon v. City of Houston, which focuses on the issue of whether a court can render as an undisputed fact a person claiming to be walking away when shot in the back by a police officer and if this warrants summary judgment for the officer. As Justice Gorsuch is now the ninth vote on the Supreme Court, we can be assured these cases will have determinative outcomes. The outcome that Justice Gorsuch sides with, however, is still to be determined.

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