When Criminal Defendants Face Conservative Judges

Writing at the National Law Journal’s Supreme Court Insider, the Manhattan Institute’s Marie Gryphon challenges the conventional wisdom that says criminal defendants do worse when they come before conservative judges:

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.

Read the whole thing here.

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  • ||

    We have more people in prison than China does..a

  • ||

    That's because China just shoots their criminals. It is easy to keep your prison population down that way.

  • Ronald Reagan||

    Technically, they're all prisoners.

  • ||

    I have been saying this for years. You don't want to be a criminal defendant in front of a judge who thinks the law means whatever fashion tells him it means. If laws can be bent to give us liberty, they can be bent to take it away.

  • Masturbatin' Pete||

    +2

  • ||

    The computer went haywire....to continue;

    Those for profit prisons we are building should come in handy.No wonder Cheney and Gonzo invested in them.Privatize -privatize-privatize!!

    Make it in their self -interest to lock people up and keep them there.
    Good thinkin.

  • Liberal judge||

    The computer went haywire

    Sure it did.

  • Fist of Etiquette||

    Seldom (it appears to me) are conservatives accused of being "soft on crime". Perhaps thus they have less to prove in the eyes of, well, whoever they think is judging them, than does the left.

  • ||

    We have too many epople in jail because we have ridiculous drug enforcement laws. I know that is obvious to all on H&R, but i have nothing against privatizing jails. Good idea it seems to me.

  • cynical||

    If we lived in a country where people didn't routinely bend law to whatever allows them to make more money, privatizing jails might be a good idea. Since we don't, privatizing jails just means that jail owners bribe the government to make prisoners of more and more people.

    We already have enough people with a financial motive for unnecessary imprisonment (people who work for the prison system), let's not make it worse.

  • ||

    Judges who feel that the words on the page are only a guideline, an indication, a hint, of what the law is or should be, and who have an instinctive affinity for a large and powerful state, tend to rule against criminal defendants? Who'd a thunk it?

  • ||

    The living breathing constitution only goes one way RC. It would never work against us to drain all the objective meaning out of the law. What could possibly go wrong?

  • ||

    John, does it ever get tiring having so many obsessive hobby horses? You ever think of having a beer and not thinking about how the leftists/atheists/MSM/Muslims/TEAM BLUE/atheists/judges/atheists are out to get you? It might be relaxing. You should try it.

  • ||

    What the hell is wrong with you? If the law doesn't have an objective meaning, then it can be interpreted in really bad ways as well as good ones.

    What does that have to do with atheists or anything other than judges and people kidding themselves about subjective meaning?

  • Patriot Mike||

    John has a point here. Conservative judges aren't "soft on crime", they just tend to stick to the words they are supposed to interpret. The statists keep looking for ways to imprison us, so their search for loopholes doesn't get far with a conservative.

  • ||

    Epi only has ad hominems at this point, no real arguments. The incomprehensible grunting phase of his syndrome cannot be far off now, and we know where that leads.

    Oh, and I call dibs on his sofa when the end comes!

  • ||

    When have I ever said "atheists were out to get me"? Is is really that hard for you to accept that not everyone thinks the way you do? Do you constantly have to project your own neurosis on everyone else?

  • Almanian||

    Just because you've never said the atheists aren't out to get you doesn't mean that they aren't. Or are.

  • ||

    No. They are just out to annoy me, which is pretty much what they want to do to everyone else.

  • ||

    Do not.

  • ||

    ""No. They are just out to annoy me..""

    Perhaps you think more about atheists than atheists think of you.

  • ||

    You know who else only wanted to annoy people?

  • ||

    "You know who else only wanted to annoy people?"

    Michael Bay?

  • Cytotoxic||

    AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT AM NOT

  • ||

    I think you guys are all missing a crucial point. It's the corruption on the prosecutors, LEO's and the stupidity of juries that skew conviction/acquittal statistics. Judges should really be looked at more closely regarding their sentencing patterns.

    Until we can get juries to look at LOE's and prosecutors sceptically rather than God-like, infallible defenders of the populus, our conviction rates will always be higher than they should. Since there is virtually no oversight of these two groups, defendants are still fucked regardless of who is on the bench.

  • ||

    I don't think our conviction rates are the result of juries. I think they are the result of prosecutors bullying people into pleading guilty. I wonder what the conviction rate before juries is versus the conviction rate overall including guilty pleas is. I bet it is a lot lower, although I have never seen such a statistic.

  • DRM||

    Well, it would have to be a lot lower, wouldn't it? 100% of plea bargains result in a conviction, while substantially less than 100% of trials do.

    And there's selection bias; somebody who is guilty will tend to see a reduced sentence as getting off easy, while someone who's innocent will see a reduced sentence as an injustice. So trials will naturally involve a greater percentage of innocent people than indictments do.

    Are some people bullied into pleas? Probably. But there's no statistical method that can reliably separate that effect from others.

  • ||

    "And there's selection bias; somebody who is guilty will tend to see a reduced sentence as getting off easy, while someone who's innocent will see a reduced sentence as an injustice."

    Yes but not always. Innocent or guilty, someone may make the rational choice that a result certain is better than risking a poor result.

    "Are some people bullied into pleas? Probably. But there's no statistical method that can reliably separate that effect from others."

    True. But the larger and more factory like our justice system becomes, the larger that number becomes.

  • ||

    Offer money to a witness on the defense side and it is bribery.
    Offer to not prosecute the mother, wife, children, sister, and roommate and its called typical prosecutor tactics.

  • ||

    If we actually tried cops and DA's for perjury, tampering and obstruction of justice when they falsify records, supress evidence and lie in courtrooms this might change.

  • ||

    ""Innocent or guilty, someone may make the rational choice that a result certain is better than risking a poor result.""

    I think that's a big player. Pleading guilty and taking probation is often better than risking prison time. Or doing 15 years for manslaughter beats risking 25 to life for murder, sometimes. There is a risk analysis involved. The prosecutors know that and use it to their advantage.

  • ||

    "The prosecutors know that and use it to their advantage."

    And so do the overburdened and often-inept public defenders. I'd be willing to bet they look at plea deals with their current caseload in mind and advise accordingly.

  • Old Mexican||

    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.

    Such a crazy idea - thinking that the written word has the meaning the text intends and not their personal whims.

  • MJ||

    "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."

    Who's making such a claim? If there's a problem with court's basing decisions on the identities of who is appearing before them, then how does that square with what Obama has explictly said what his appointees judicial philosophy should be based on:

    "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

    The Left's problem is not with basing decisions on what groups people belong to, it's their perception that conservative judges will favor groups the Left does not approve of. The Left explicitly says they want identities to matter in trials and they do not want a neutral law.

  • Masturbatin' Pete||

    "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."

    Yeah, I don't think I've ever heard this assertion either, except to the extent that conservative justices favor corporations over the little guy, and maybe that they favor the state over criminal defendants generally.

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