Every opinion rendered by Supreme Court nominee Brett Kavanaugh will be severely scrutinized as his confirmation process unfolds, but so far conservative advocates for criminal justice reform like what they see in Kavanugh’s record.
“He has a great record of really respecting the role of the judiciary and respecting the rule of law, defending the separation of powers, and resisting that temptation of judicial activism,” said Right on Crime attorney Haley Holik.
She says several cases show Kavanaugh’s reasoned approach and his balance between enforcing the law and having an instinct for protecting citizens from an encroaching government.
Holik specifically cited the case of U.S. v. Moore, a 2010 case ruled on by the Court of Appeals for the D.C. Circuit and which included a concurring opinion by Kavanaugh. The case centered on Marlin Moore and his conviction for writing a fictitious name while signing for a package delivered by the U.S. Postal Service. The incident was part of a larger drug investigation.
Moore was appealing his conviction for signing the fake name, claiming he had no idea it was a federal offense and that no warning was printed on the form he signed.
Kavanaugh agreed with the court’s decision to uphold the conviction while stating there could well be circumstances where people might have grounds to challenge such a conviction for not knowing they committed a crime in what are known as § 1001 cases. The legal term at issue is known as mens rea.
“As many others have noted, § 1001 prosecutions can pose a risk of abuse and injustice. In part, that’s because § 1001 applies to virtually any statement an individual makes to virtually any federal government official — even when the individual making the statement is not under oath (unlike in perjury cases) or otherwise aware that criminal punishment can result from a false statement,” wrote Kavanaugh.
“To be sure, in many false statements cases the Government will be able to easily prove that the defendant knew his conduct was unlawful. But in some cases, it will not be able to do so — and those of course are precisely the cases where it would seem inappropriate and contrary to § 1001’s statutory text to impose criminal punishment,” added Kavanaugh.
“He indicated that perhaps he could have looked at Supreme Court precedent and applied it differently and come to a different conclusion because mens rea is so important to the foundation of criminal law,” said Holik.
She says Kavanaugh’s concern for determining whether someone knowingly committed a crime is an important step in establishing an effective criminal justice system.
“He has really shown this jurisprudence that he values this traditional presumption of needing a mental culpability when you’re dealing with these cases,” said Holik, who also appreciates Kavanaugh for limiting his decisions to the issue at hand.
“At the same time, he’s always ruled only on the scope of the legal challenges that have been raised. That’s important, again, because he has resisted judicial activism,” said Holik.
Holik says having a standard like that is good for all Americans as the federal government keeps piling on laws that most people know nothing about.
“Overcriminalization at the federal level is this phenomenon that maybe your listeners are familiar with. It’s whenever the government criminalizes activities that aren’t typically what of you and I think of as being criminal in nature.
“There’s kind of this anecdote out there that we commit three to seven federal crimes a day. That’s largely due to the fact that the federal government, these non-elected agency officials, keep creating laws that are redundant, meaning the state already has a law that criminalizes this or just doesn’t include a criminal intent element,” said Holik.