The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Murder, Manslaughter, or Self-Defense?

True story. One homeless man killed another in a street fight, and they charged him with first-degree murder. He was convicted at trial, but last week, the California Court of Appeal reversed that conviction and sent the case back.


The defendant had pleaded self-defense, but the trial court didn’t let him present expert testimony that homeless people suffer a lot more violence than the rest of us, and as a result, they develop a hypersensitivity to perceived threats.

On appeal, the court ruled that this evidence could’ve made a difference because it would’ve helped the jury evaluate self-defense from his perspective, as the law requires. If a jury found that he actually and reasonably believed in the need for lethal force to defend himself, he wouldn’t be guilty of any crime. If, instead, it found that he actually but unreasonably believed in the need for lethal force, then he’d be guilty of manslaughter but not murder.

As it happened, the defendant was convicted of first-degree murder and sentenced to 26 years to life in prison.

But is that what happened? Here’s the trial record below, so you can decide for yourself.

The dead man’s own friend testified that he watched him inject a “fat” dose of meth that night before storming out the tent they shared. The dose was an 80cc syringe, which an expert described as large enough to kill someone who wasn’t an addict. The friend testified that the man became “agitated,” “aggressive,” and “explosive” before he left.

Within the hour, he was dead.

The defendant didn’t testify at trial, but he’d already confessed to the killing. In post-arrest interviews, he said he knew the man because they both camped in the same area, and he was afraid of him. He’d been stabbed just a few weeks before (which his medical records proved at trial), and he thought the man was one of his attackers.

According to the defendant, that night, the man approached him aggressively and asked for a cigarette. He seemed like he was on something, and the defendant ignored him. The man got angry and asked if he spoke English, and he said he did. The man asked again if he had a cigarette, and he said he did not.

The man then came at him like he wanted to fight. He reached for something in his pocket or waistband, and the defendant thought he was grabbing a knife. So he grabbed his backpack and pulled out a kitchen knife that he had bought after his stabbing. He told the man to get away or he was “gonna send [him] straight to hell.”

They “just started going at it.” Their struggle veered down to the end of the street, where the defendant stabbed the man. When he fell, the defendant “got on top of him [and] made sure that he didn’t get up.” He explained it this way: “I wasn’t gonna wait … to get stabbed. Last time it happened is because I waited … and I wasn’t gonna do that a second time.” He continued to stab the man because he “had to make sure he didn’t … move.”

When asked if he was trying to kill the man, the defendant answered, “Essentially, yes.  I wasn’t trying to tickle him…. Obviously. I’m not gonna lie, yes.”

Afterward, he walked back to his backpack, put the knife in it, and just sat there, waiting for the police. A passerby stumbled onto the scene, saw him, and called 911. The police arrived, found him sitting there, and arrested him. When they asked him what happened, he said, “I got them before they got me.” When asked if he was okay, he replied, “No, he was trying to kill me.” Asked where the knife was, he said it was in the backpack.

A third homeless man had no dog in the fight but overheard some of it. He testified that he was settling in to sleep when he heard two voices arguing. One sounded angry and guttural, like a growl. The other yelled, “Stop, stop,” and moments later, in distress, “Help, help.” He said he stayed put because he didn’t want to get involved. He also testified that he chose his own sleeping place—a stairwell behind the public library—for safety reasons because it was below eye level, and he was less likely to be seen.

Police found the dead body 100 feet away. The primary cause of death was multiple sharp-force injuries to the torso, neck, head, and extremities along with acute methamphetamine intoxication. The blood and urine tested positive for meth, opioids, and other drugs. The defendant’s blood tested negative for all drugs.

On this record, the court of appeal ruled that the trial court abused its discretion in excluding the defense’s expert testimony because it was relevant to whether he actually and reasonably believed he was defending himself.

What’s a Hate Crime in California?

If you’re wondering about that in light of recent events, here’s an overview.

California defines a hate crime as any crime that you commit, in whole or in part, because of a victim’s actual or perceived race, gender, religion, ethnicity, nationality, disability, sexual orientation, or association with those who bear these characteristics.

The phrase “in whole or in part” is important. It means you can be guilty of a hate crime even if your bias wasn’t the only thing that motivated you. It doesn’t even have to be the main thing, in fact, as long as it was a substantial motivating factor. Under the law, a substantial factor is more than a trivial or remote factor but not necessarily the sole or main factor.

The phrase “actual or perceived” is important, too. It means you can be guilty of a hate crime even if it turns out you were wrong about the victim’s race, gender, religion, ancestry, disability, sexual orientation, or associations. What matters is your motive and mental state, not whether the victim actually belonged to or associated with the group in question.

Beyond that, the law defines the other terms broadly, too. The term “victim” can refer to a single person, a group of people, or a place where people gather like an office, library, meeting hall, place of worship, public agency, or community center. The term “gender” includes a person’s sex at birth as well as his or her gender identity or gender-related appearance or behavior. The term “religion” includes atheism and agnosticism.

What are the possible charges and punishments?

The main hate-crime statutes are found in a section of the Penal Code that concerns civil rights, so let’s start there. See generally Pen. Code §§ 422.55–422.93.

First, it’s a misdemeanor if you interfere with people’s civil rights (like the right to vote) by force, threats, harassment, or damage to property. But you can’t be convicted for speech alone unless you threatened violence and had the apparent ability to carry out the threat. If convicted, you face imprisonment in the county jail for up to one year, a fine of up to $5,000, or both. You’ll also have to perform community service for up to 400 hours in one year.

Furthermore, the misdemeanor can be charged as a felony if you have a prior misdemeanor conviction, posed a threat of violent injury, caused actual physical injury, or caused property damage over $950. If convicted of a felony, you face imprisonment in the county jail for up to three years, a fine of up to $10,000, or both.

Finally, the government can charge any felony as a hate crime if it alleges and proves that you committed the crime out of bias toward the victim’s protected characteristics. If you’re convicted of that special allegation, the court will tack on an extra one, two, or three years to your prison sentence. Or if you’re found to have acted in concert with another person in committing the hate crime, the court will impose an extra two, three, or four years in prison. You’re more likely to receive the high terms if you used a gun, and if you have prior felony hate-crime convictions, you’ll get an extra year in prison for each one.

A Penny For Your Thoughts, Judge

Thank God we live in a country whose leaders speak like this. What if they didn’t, or couldn’t?

In this case, maybe it’s because the speaker, Alex Kozinski, a prominent federal judge, was an immigrant born behind the Iron Curtain, the son of two Holocaust survivors who came here when he was twelve. Maybe we value the rule of law more viscerally when we’ve seen firsthand—when we know and understand—what government is capable of.

In any event, Judge Kozinski sat down recently for an interview on criminal law and justice, and it’s riveting. Courtesy of the Washington Post, the interview is split into five short video clips on the topics below. I’ve excerpted some of his comments here, but each clip is only one or two minutes long, and they’re worth watching and listening to.

On police militarization and surveillance. “I somehow got on a law-enforcement mailing list. I don’t know whether they send this to all judges, but I do get these catalogues that show all the equipment that they make available for the police. And my word, those things really look like they belong in the military…. It’s important to fight crime, it’s important to fight terrorism, and we certainly rely on police to do many things that, God knows, most of us would not want to do. So I think we should be very grateful to the police for being willing to put themselves out there in harm’s way on our behalf, but I think there is such a thing as too much. There is such a thing as being too zealous and entrenching on people’s freedoms. We do not want to live in a militarized society.”

On redemption and rehabilitation. “So … we have made it much easier to keep track of people and to have the past revealed, and in some cases that’s justifiable for the protection of society. But I think we have gone too far. I think there’s such a thing as privacy. There’s such a thing as forgiveness. There’s such a thing as giving people truly a clean break to remake their lives. And our system tends to pull them back, tends to pull them down. And basically says you’ll never get away, you will never have a normal life again. And I think that’s too bad. I don’t think that’s a society we want to live in. I think … we have traditionally believed in the concept that people can reform toward good. They’re not inevitably evil, and they’re not forever evil. And that concept seems to be dwindling, and I’m sorry to see it go.”

On guilty pleas and false confessions. “Well there are many reasons somebody may plead guilty, even though there may be doubts, or even though they may be innocent. One of the principal reasons is that, often, there are very serious charges laid on by the government and going to trial is so risky that taking a guilty plea on something that is much less seems the only rational choice. Because if you go to trial and lose, you’ll never see the light of day. There are also many cases where people are interrogated by the police for a very long time, and they wind up giving confessions—confessions that turn out not to be true…. DNA proves it, witnesses prove it, somebody else was out there. But the police managed to extract a confession. Well, once you confess to the police, any lawyer will tell you it’s very hard to persuade the jury that you are not guilty. So people may take a guilty plea in that kind of situation just because they think they have no hope of being acquitted, and the guilty plea at least gives them some measure of hope that they will someday see the light of day.”

On overcriminalization. “As the law gets more complex and as more things are criminalized and as more statutes are added, the line between what is criminal and what is not criminal becomes very blurry. Oftentimes you don’t know that something is criminal or you don’t imagine that something is criminal until you get charged with a crime…. Now I don’t think we ought to be charging things that are not clearly crimes. Criminal prosecutions ought not to be an invention. People ought to be charged for crimes for things that are clearly criminal. Not things that a prosecutor can imagine might be a crime.”

On punishment and mandatory-minimum sentences. “One of the things I suggest is that … the jury be consulted. And that right now, in most places in the United States, except in the case of capital cases, the juries have no idea when they convict as to what the likely or the possible sentence would be. I think that’s sort of a mistake. I think we ought to let juries know whether they are weighing the facts and deciding whether someone is going to go to prison two or three years or whether he is going to go to prison likely for the next twenty or thirty years. In life, we don’t make decisions in the abstract. We always know the consequences, we weigh the consequences of the decision. It seems to me the jury ought to be informed, the jury ought to have a say in what the sentence should be.”

Social Media is not Words with Friends

Speaking of the U.S. Supreme Court, the high court delivered another interesting opinion on Monday, this time in a case that confronted tough questions about the line that separates free speech from criminal threats.

The defendant was a 27-year-old man whose wife left him in May 2010, taking their two young children with her. The couple had been married for nearly seven years, so apparently they’d met very young, and he didn’t take the split well.

The defendant listened to rap music and was active on Facebook, so he adopted a pen name, Tone Dougie, and he began posting self-styled rap lyrics that were laden with violent language and imagery about his estranged wife. The lyrics were interspersed among other, mundane posts about a movie he liked or a comedian he followed, but they definitely stood out. The defendant posted disclaimers that these rants were fictitious, and he explained to others that they helped him process his feelings. Once, he commented, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”

His wife didn’t share his sense of artistic license, however; she obtained a restraining order against him, and the authorities began monitoring his social-media activity. They even paid a visit to his home. It doesn’t appear that he ever violated the restraining order, but he kept posting lyrics, and he began taking shots at the authorities, too.

These activities got him charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit a communication containing any threat to injure the person of another. It’s a felony punishable by up to five years in prison. The hook for federal jurisdiction is if you transmit the threat in interstate commerce, but nowadays, with the internet, that’s rarely a sticking point. The five counts against him were for threatening his wife, the police, an FBI agent, the local elementary schools, and the patrons and employees of the amusement park he worked at. Not in that order, necessarily, and likely to varying degrees. Mostly, I imagine, it was about his wife and related life circumstances.

At trial, the defendant testified, among other things, that his posts emulated the lyrics of rap artists like Eminem and that he’d posted “nothing … that hasn’t been said already.” At the close of trial, he asked the court to instruct the jury that, to convict him, it must find that he intended to communicate a threat. Instead, the court instructed the jury that it need only decide whether he communicated what a reasonable person would regard as a threat. Based on that instruction, the jury convicted him on four of the five counts, acquitting him of threatening the park patrons and employees. The defendant was sentenced to 44 months in prison followed by three years of probation.

On appeal, the defendant again argued that, to be guilty, he must have intended his posts to be threats, but the court of appeals disagreed, holding that the law required only that a reasonable person would regard them as such.

In a 8-1 decision, the Supreme Court reversed the case and sent it back. The Court agreed that Section 875(c) was silent on what kind of mental state makes a person guilty of the crime, but it held that this silence didn’t mean no mental state was required. Rather, under the bedrock, common-law principle of mens rea, which “took deep and early root in American soil,” a defendant’s mental state is the crucial element that separates innocent conduct—or even wrongful conduct—from criminal conduct.

Based on this principle, the Court held that negligence could not support a conviction under Section 875(c), and it reversed the case on that ground. In doing so, it considered the following examples from its own, prior cases:

  • Did you take someone else’s property? Then you can’t be guilty of stealing if you thought the property was abandoned.
  • Did you sell drug paraphernalia? You can’t be guilty if you didn’t know the stuff was for using drugs.
  • Did you misuse government benefits in some way? You can’t be guilty of a crime if you didn’t know you couldn’t use them that way.
  • Did you share child pornography? You can’t be guilty if you didn’t know the pornography depicted actual minors.

In each of these cases and others, you can’t be guilty of a crime without a guilty state of mind, even if someone else decides, after the fact, that a hypothetical reasonable person would’ve known differently.

So too, the Court held, with Section 875(c).

What is enough? Well, it’s definitely enough if you communicate a threat for the purpose of making a threat or with knowledge that it will be viewed that way.

What if you’re reckless about it? That question wasn’t presented on appeal or briefed by the parties, so the Court didn’t decide it, which is wise if the Court wants to decide it carefully on the basis of concrete facts. But the question may arise again in this very case on remand, and in any event, it may not take long for the question to present itself. As one Supreme Court justice once observed, “The life of the law has not been logic; it has been experience.”

U.S. Sentencing Commission Amends Guidelines for White-Collar Fraud Cases

Any day now, the U.S. Sentencing Commission will submit to Congress a set of proposed amendments to the federal sentencing guidelines that it voted to approve three weeks ago. That matters because, in federal court, the guidelines drive most sentences and influence nearly all of them. If Congress doesn’t object to the amendments, they will go effective on November 1. Here’s a copy of the April 9 press release, and here’s a link to the text of the amendments on the Sentencing Commission’s website.

In particular, the proposed amendments will affect the main sentencing guideline that governs white-collar fraud cases. See U.S.S.G. § 2B1.1. Let us count the ways.

First, the amendments will change the definition of a defendant’s “intended loss,” which is important because § 2B1.1 punishes you based on the amount of loss you cause, and it defines “loss” as the greater of the actual loss or the intended loss. Currently, the guideline defines “intended loss” as the monetary harm that “was intended to result from the offense,” but the amendments would define it as the monetary harm that “the defendant purposely sought to inflict.” The aim of the new language is to align your punishment more with your specific intent and mental state.

Second, the amendments will change the way § 2B1.1 accounts for the number of victims. Right now, the guideline punishes you at progressively higher levels if your offense involved ten or more victims, fifty or more victims, or 250 or more victims. The amendments will shift the emphasis away from just the number of victims, which can include people whose losses were negligible, and toward the number of victims who suffered “substantial financial hardship” as a result. With this change, if even one victim suffered substantial financial hardship from the offense, the guideline will punish you for it, and it will punish you at progressively higher levels if you’re deemed to have caused such hardship for five or more victims or 25 or more victims. So what qualifies as substantial financial hardship? The court will decide that based on whether your victims became insolvent, had to file for bankruptcy, lost a big chunk of their savings, or other such factors.

Third, the amendments will revise the enhancement for offenses that involve the so-called use of “sophisticated means.” Right now, you get a bump in your sentence if the court concludes that your offense involved especially complex or intricate conduct. The amended guideline will clarify that this enhancement doesn’t apply unless you personally engaged in or caused the conduct that constituted the sophisticated means.

The proposed amendments include other important or interesting changes. They will affect how the guidelines compute your criminal history and how they assess the scope of your liability for the acts of others. They will adjust the various monetary tables in the guidelines to account for inflation. And they will make changes associated with the reclassification of hydrocodone from a Schedule III to a Schedule II controlled substance.

But the amendments to the fraud guideline have made the biggest splash, even as the defense bar continues to debate and analyze their sweep and significance.

Will they apply retroactively? Here’s a report that suggests the answer may be no.

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