This article is part of a case law symposium from Supreme Court Candidate Amy Coney Barrett.
Evan Lee is Professor Emeritus of Law at UC Hastings College of the Law in San Francisco.
Of the 21 criminal statements that Judge Amy Coney Barrett published in the US Court of Appeals for the 7th Circuit, seven were for the defendant and 14 were for the government. It is a small piece of work that needs caution when it comes to drawing broad conclusions. Still, these opinions contain some notable features.
In her responses to the Senate Judiciary Committee questionnaire, Barrett listed her dissent in Kanter vs. Barr, in which she strongly advocated the rights of the Second Amendment, as her main opinion. Two of their criminal law views seem to underpin this obligation to protect the constitutional right to own guns.
In the US against Watson, an anonymous 14-year-old boy used a borrowed phone to alert police that some "boys" were "playing with guns and belongings" in a parking lot in a high-crime area of Gary, Indiana. Because of this information, the police stopped a vehicle and retrieved two weapons. Barrett wrote for a unanimous panel, admitting the case was a "close call," but believing the police had no reasonable suspicion of the seizure.
"We recognize that when police respond to tips about firearms, the calculation is complicated, at least in areas where carrying a firearm in public is not a crime in itself," she wrote. “On the one hand, the police are understandably concerned about the possibility of violence and want to act quickly. On the other hand, citizens should be able to exercise the constitutional right to carry a weapon without the police stopping them. “This opinion seems to show a strong commitment to bourgeois libertarianism; At the same time, this could be viewed as a controversial level of optimism about the dangers of guns in high crime areas.
In the US against Moody, Dandre helped Moody steal 100 cannons from a train. His share of the recording was 13 weapons, which he then sold over the phone to anonymous buyers who “heard about them”. The district judge increased Moody's sentence for selling to anyone Moody knew or had reason to know to be prohibited by law from owning or using weapons to commit future crimes. Barrett wrote for a unanimous panel and reversed that improvement for "simple mistake". "When the court found that Moody had such knowledge, it clearly crossed the line between acceptable common sense inference and improper speculation," she wrote. Judges with less confident views about weapons – especially stolen weapons – may have come to a different conclusion.
In Barrett's recent criminal opinion, literal legal interpretation took precedence over bourgeois libertarianism. This statement was in contradiction to an en banc statement which applied the first step law to Hector Uriarte, who was awaiting re-conviction at the time the law came into force. The First Step Act was passed in 2018 with broad support from both parties to address what was seen as undue harshness in federal condemnation laws. The law applies if “no penalty has been imposed for the offense at the time it comes into force”. Uriarte had been sentenced under a federal minimum law, but that sentence was overturned before the first step law was passed.
A majority of nine judges in the United States against Uriarte ruled that the law was applicable to Uriarte as he was not a criminal offense at the time the law went into effect. Barrett and two other judges disagreed, arguing that the majority had twisted the law text. According to Barrett, the question was not whether Uriarte was sentenced at the time of entry; Rather, the question was whether he had ever been judged. Literally: "At the time of entry into force, a penalty was imposed for the offense," which is why Uriarte was not covered. While it is impossible to say how Barrett's old boss, Justice Antonin Scalia, would have ruled the case, it may be noteworthy that Barrett's opinion is prominently cited in legal texts by Bryan Garner, Scalia's co-author of Reading Law: The Interpretation as support for their mode of interpretation.
The application of federal anti-relapse laws is a large and important segment of federal criminal justice. In the US, against Walker, Barrett wrote a statement for a unanimous panel of three judges overturning the conviction of a convicted sex offender for non-registration. The interesting thing about this reversal is why. According to federal law, the question of whether a previous conviction “counts” is often more “categorical” than objective. In other words, does the Sentencing Act categorically fit the law under which the defendant is now prosecuted? In Walker, the district judge found beyond the law that the actual ages of victims at ages four and six were well below the legal threshold, despite the fact that the Sentencing Act did not categorically fit under the Sex Offender Registration Act. Barrett believed that the district court should have used the categorical approach, regardless of the actual facts.
This decision could be significant as this categorical approach applies not only to sex offender registration cases, but also to many cases where the Professional Armed Crime Act (a major three-strike law) plays a role, and many Immigration cases (including Pereida v Barr) discussed in the Supreme Court on Wednesday). Some lower federal justices – and some conservative Supreme Court justices – rub against the categorical approach, which ignores the real facts and often brings up what some judges consider a godsend for criminal defendants and immigrants with criminal records.
The categorical analysis of previous convictions relies on the longstanding precedent of the Supreme Court and the need to avoid “mini-trials” in order to ascertain the facts underlying old convictions. Most of these resulted from objection agreements in which the facts are little discussed. In Walker, Barrett and her colleagues followed this precedent without making any editorial comment on the soundness of the categorical approach. But of course that doesn't necessarily mean that she wouldn't vote to override it if she were on the Supreme Court.
The rest of Barrett's criminal submissions are fairly factual and mostly condemn investigation or search and seizure cases. Still, they show something about how they perceive people's behavior in the real world. In the US against Terry, the question was whether law enforcement had reason to believe that a woman who opened the front door in her bathrobe was authorized to consent to a search of the male suspect's home. "We believe the answer is no," wrote Barrett for the unanimous panel. "The officers could reasonably assume that the woman had spent the night in the apartment, but that is about as much as a bathrobe could hold. Without more, it was unreasonable for them to assume that she and the suspect shared access to the property. ”(It turned out that the woman was the mother of the suspect's child but did not live there.)
The United States v Kienast urged Barrett and her colleagues to evaluate the norms of online viewing. The defendants had been convicted of possession of child pornography. The FBI found child pornography in their homes and on their computers after discovering their identity through a child pornography website they visited on the dark internet. The defendants challenged the warrant issued to allow surveillance of viewers of the site. They insisted that it was ruthlessly too inclusive because it could sweep innocent bystanders who “stumbled upon” the website but did not engage in illegal activities.
Barrett rejected this argument. “(B) When these actors downloaded the software necessary to access the dark web, they entered the specific 16-character jumble that (serves as the website's web address) and logged on to the website with Submitted to at least one sexually stimulating element. We are very skeptical that you would be surprised to find yourself on a website that offers child pornography. "
Finally, United States v Atwood offers a glimpse into Barrett's beliefs about legal ethics. She wrote a statement for a unanimous body that overturned a judgment because the judge had had extensive, friendly discussions with his old colleagues in the public prosecutor's office. The government had argued that it was a harmless mistake as none of the communications related to the defendant James Atwood. However, the external perception of this recent extensive contact with one side was too great. At the end of her innocuous error analysis, Barrett concluded, "Allowing Atwood's judgment would undermine public confidence in the fairness of that judgment and the impartiality of the judiciary."
Symposium: Finding Clues in Barrett's Criminal Views,
SCOTUSblog (October 14, 2020, 4:21 p.m.),