Will Kavanaugh be a fair justice on the Supreme Court? Look to his views on the importance of mens rea protections. The idea there is that a person cannot be criminally liable for actions that no reasonable person would think are wrong. The principle played a key role in two of his decisions while on the U.S. Court of Appeals for the D.C. Circuit, writes John Malcolm and John-Michael Seibler:
In United States v. Burwell (2012), dissenting from the majority opinion of the en banc court, Kavanaugh wrote that “’mens rea’ embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again.”
United States v. Burwell involved a mandatory 30-year prison sentence for carrying an automatic weapon during the commission of a violent crime, and addressed whether the government had to prove that the defendant knew his weapon could be fired automatically.
In the hearing on Thursday, Kavanaugh recalled that this was “not a sympathetic defendant.” It was an armed bank robber who claimed he was unaware his weapon was automatic. “But I thought it was a complete violation of due process,” Kavanaugh continued, “to give him a 30-year mandatory minimum for a fact that he did not know.”
And his reasoning was perfectly in line with the U.S. Supreme Court’s cases on “mens rea.”
In another case, United States v. Williams (2016), Kavanaugh wrote an opinion concurring with the majority decision to reverse a murder conviction where the jury instructions on “mens rea” were unclear and, as he recalled Thursday, there “was a question of manslaughter versus second-degree murder that would have had a huge difference in the defendant’s sentence.”
United States v. Williams involved a death resulting from a gang initiation ritual and a dispute between the prosecutor and defense counsel over whether or not jurors could consider the victim’s statements made during the ritual, which conveyed consent to the conduct that ultimately caused his death, in deciding whether to convict the defendant of second-degree murder or the lesser offense of manslaughter.
In his opinion, Kavanaugh asked, “Who’s right about the law?” While fully acknowledging that the defendant “committed a heinous crime,” he concluded that jurors had been “armed with [a] misunderstanding” of the law and convicted the defendant of second-degree murder instead of manslaughter.”
“I am unwilling to sweep that under the rug,” wrote Kavanaugh.
It meant a difference between the defendant’s 22-year prison sentence for murder and a maximum sentence of eight years for involuntary manslaughter.
Both cases prove Kavanaugh’s statement Thursday, “No matter who you are in my court, if you have the right argument on the law, I’m going to rule in your favor.”
[John G. Malcolm and John-Michael Seibler, “Hatch-Kavanaugh Exchange Highlights Need for ‘Mens Rea’ Reform,” The Daily Signal, September 7]
