Brett Kavanaugh On Crime

Justice Anthony Kennedy recently announced his retirement from the Supreme Court. Except for death penalty cases, Kennedy rarely voted in favor of criminal defendants. He opposed Apprendi, Booker, Alleyne and many other “seminal” criminal procedure cases handed down by the Court.

Thus, while some oppose President Trump’s nomination of Brett Kavanaugh to the Court, a future “Justice” Kavanaugh may be good for criminal defendants. On some issues at least.

Judge Brett Kavanaugh has been a circuit judge on the D.C. Circuit for 12 years. Over those 12 years, he has authored a number of opinions in criminal cases. He has also penned numerous notable dissents.

While Kavanaugh does not seem to be the best defender of the Fourth Amendment, he does not like “acquitted conduct.” United States v. Brown, 892 F.3d 385, 415 (D.C. Cir. 2018) (Kavanaugh, J., dissenting).

Brett Kavanaugh is also a huge proponent of requiring the Government to actually prove mens rea, the intent to commit an offense. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016) (Kavanaugh, J, concurring); United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, J., dissenting); Lorenzo v. Securities and Exchange Commission, 872 F.3d 578, 598 (D.C. Cir. 2017) (Kavanaugh, J., dissenting).

Kavanaugh has also ruled favorably concerning claims of ineffective assistance of counsel. United States v. Noye, 824 F.3d 1129 (D.C. Cir. 2016); United States v. James, 719 Fed.Appx. 17 (Mem) (D.C. Cir. 2018).

Kavanaugh has also shown some love in sentencing error cases. United States v. Jones, 697 Fed.Appx. 2 (Mem) (D.C. Cir. 2017); United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016).

So while many are concerned about Kavanaugh’s potential vote in “social” issue cases, I think there is a strong chance that he will be a good justice for some, but not all, criminal issues.

Some of you may recall that when “Dimaya” split 4-4 last year I accurately predicted that newly seated Justice Gorsuch would break the tie by voting in favor of Dimaya. Justice Gorsuch’s favorable criminal defendant votes have surprised many.

Expect similar surprises from Brett Kavanaugh if he is confirmed as the next Associate Justice of the Supreme Court.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

Recommended for you

Newsletter July 2nd, 2021

NEWSLETTER July 2, 2021 Welcome to the weekly edition of our newsletter. VIEWS ON THE LAW [-] Borden and 924(c) Whenever the Supreme Court invalidates part of a criminal statute, the question comes up about whether the Court’s reasoning could affect similar statutes and whether this opens the door for relief. The Court held in…

Read More about Newsletter July 2nd, 2021

Amendment 782 Motion Reconsideration

Reinaldo Rivera moved for 18 U.S.C. § 3582(c)(2) relief based on Amendment 782 to the Guidelines, commonly known as “drugs minus 2.” The district court granted the motion and reduced his sentence to 420 months from LIFE. But in doing so, the district court believed Rivera’s mandatory minimum was 30 years for his CCE conviction.…

Read More about Amendment 782 Motion Reconsideration

Drug Treatment And Vocational Training Improper Sentencing Considerations

Christopher Thornton moved for a downward variance at sentencing arguing, among other things, that “in-prison treatment during the proposed thirty-eight months would help mitigate any potential risk he posed to the community.” The district court denied the motion, but in doing so said that Thornton had “mental-health issues, and he needs drug treatment” and that…

Read More about Drug Treatment And Vocational Training Improper Sentencing Considerations