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National Law Journal


When Freeing Criminal Defendants Is Conservative

September 08, 2010

By Marie Gryphon

Criminal defendants can’t get a break from conservative judges, according to conventional wisdom. Former Chief Justice William Rehnquist reinforced the stereotype with his famously inartful remark that a judge who is a “strict constructionist” in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court’s “broad constructionist” reading of the Constitution. But Rehnquist was speaking specifically of constitutional claims at a time when expansive, policy-driven readings of the Fourth, Fifth and Sixth amendments were, for better or worse, revolutionizing police and courtroom procedures.

Not all criminal cases involve constitutional issues. When a case involves a disagreement about how to interpret a criminal law, a judge who takes a “strict constructionist” or textualist approach to interpreting the law is very likely to side with a criminal defendant. There is nothing inherently unconservative about reversing the conviction of a defendant who has not clearly violated the law. On the contrary, one of the oldest mandates of the common law is to protect the public from arbitrary prosecutions under vague statutes.

The Court’s decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most “liberal” on the Court: They sided with the criminal defendants in these cases eight out of nine times. The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.

The opinions in these cases demonstrate why Scalia and Roberts, both “textualist” judges, so often side with criminal defendants. Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions. In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal. Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.

In Johnson v. U.S., Scalia rejected the government’s claim that defendant Curtis Darnell Johnson was subject to an enhanced penalty under the Armed Career Criminal Act (ACCA) after pleading guilty to illegal possession of ammunition. The ACCA makes draconian sentences available to prosecutors if defendants have been convicted of three prior “violent felonies.” In an opinion joined by Roberts and Kennedy, Scalia considered Black’s Law Dictionary among other sources to determine that Johnson’s prior conviction for battery required only “actually and intentionally touching” another person without their consent, and that mere touching was not “physical force” — a required element of a “violent felony” under the ACCA.

In Bloate v. U.S., Roberts, Scalia and Kennedy joined Justice Clarence Thomas’ majority opinion holding that the Speedy Trial Act of 1974 required dismissal of the prosecution’s case against Taylor James Bloate on federal drug and firearms charges because no criminal case may be delayed by more than 70 days unless the trial judge explicitly finds that further delay would serve the ends of justice. Any other interpretation of the act would render the statutory language concerning the “ends of justice” meaningless in contravention of an important canon of statutory interpretation, the Court held, unmoved by the policy argument offered by the dissent that the requirement would be pointless in practice.

In Dolan v. U.S., Roberts, joined by Scalia and Kennedy, strongly dissented from the Court’s decision that a federal judge may order a criminal defendant to pay restitution to a crime victim under the Mandatory Victims Restitution Act of 1996 even after the statute’s 90-day deadline had passed. Roberts wrote: “The Court appears to reason that [the act] confers the authority to add a restitution provision for at least 90 days�[b]ut that is not what [it] says. It provides 90 days for a final determination of the victims’ losses, not a free pass to impose restitution whenever the trial court gets around to it.”

Certainly, the court’s so-called “conservative” justices are less likely than their peers to favor criminal defendants in cases concerning constitutional limits on police activity. The Court decided three cases last term about Miranda warnings: Maryland v. Shatzer; Florida v. Powell; and Berghuis v. Smith. In each of these cases, the Court’s Republican appointees favored the government’s narrower view of the scope of constitutional protection. But criminal cases involving statutory interpretation show that most of these jurists readily side with criminal defendants when careful textual interpretation leads them to do so.

As another Republican-appointed justice, Pierce Butler, wrote for the Court in 1939, “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” By rigorously interpreting the words of Congress in criminal cases, Roberts, Scalia and Kennedy are protecting this important conservative legal principle.

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