We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Last week’s posts were light to the point of being non-existent. I was off watching my oldest graduate from Harvard Business School (after a 13-year stint in Army aviation, most of which was in special operations). Yeah, I’m pretty proud watching my kids accomplish things I never could have done…
But, now, it’s back to work.
JUSTICE GORSUCH HINTS HE MAY NOT BE A “LOCK” VOTE FOR GOVERNMENT
This is the time of year I am usually up to my armpits in Supreme Court decisions. But with only four weeks left (and only four opinion days scheduled), SCOTUS still has 31 cases to decide, including a passel of important criminal decisions. Maybe we’ll see something today…
Meanwhile, the high court’s decision in Nieves v. Bartlett last week (a narrow decision holding that if a cop has probable cause to arrest you, you cannot make a 1st Amendment retaliatory arrest claim) was interesting primarily for a notable voting lineup and multiple separate opinions. Nieves especially provides more evidence that Justice Gorsuch is a sharp critic of the criminal justice system.
In his concurring opinion, Justice Gorsuch wrote:
History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our 1st Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.
Ohio State University law professor Doug Berman said in his Sentencing Law and Policy Blog that “the sparring in Nieves now has me even more excited (if that was possible) to see what the Court does in the biggest criminal cases I am watching, especially Gundy and Haymond.”
Nieves v Bartlett, Case No. 17-1174 (May 28, 2019)
Sentencing Law and Policy, Notable comments in notable SCOTUS opinions addressing First Amendment retaliatory arrest claims (May 28, 2019)
– Thomas L. Root