[Eugene Volokh] Neil Gorsuch on criminal defendants and the rule of law

I’m blogging about some of my favorite opinions from Supreme Court nominee Judge Neil Gorsuch (see, for instance, this item about a religious freedom case). I think this can give readers a great sense of Gorsuch’s writing style and maybe even some sense of his judicial philosophy. Here’s an opinion in which the entire 10th Circuit was asked to rehear a decision rendered by a three-judge panel (United States v. Games-Perez); Gorsuch urged his colleagues to grant rehearing (called “en banc” rehearing), but the court declined, by a 6-4 vote. Here is Gorsuch’s opinion dissenting from that decision:

People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.

Of course, rehearing en banc is reserved only for questions of exceptional importance. And I fully appreciate the considered judgment of my colleagues who vote against reconsidering our circuit precedent: after all, it is both longstanding and consistent with the rulings of several other courts. Even so, I respectfully submit this extraordinary situation warrants reconsideration.

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Mr. Games-Perez was prosecuted under 18 U.S.C. § 924(a)(2) for “knowingly violat[ing]” § 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce. But to win a conviction under our governing panel precedent in United States v. Capps (10th Cir. 1996), the government had to prove only that Mr. Games-Perez knew he possessed a firearm, not that he also knew he was a convicted felon.

For reasons I’ve already explained and won’t belabor in detail here, it is difficult to see how someone might “knowingly violate[]” § 922(g) without knowing he satisfies all the substantive elements that make his conduct criminal — especially the first substantive element Congress expressly identified. For the reader interested in more on all this, my concurring panel opinion offers it.

For current purposes, just stating Capps‘s holding makes the problem clear enough: its interpretation — reading Congress’s mens rea requirement [i.e., a requirement of a culpable mental state -EV] as leapfrogging over the first statutorily specified element and touching down only at the second listed element — defies grammatical gravity and linguistic logic. Ordinarily, after all, when a criminal statute introduces the elements of a crime with the word “knowingly,” that mens rea requirement must be applied “to all the subsequently listed [substantive] elements of the crime.”

This court’s failure to hold the government to its congressionally specified burden of proof means Mr. Games-Perez might very well be wrongfully imprisoned. After all, a state court judge repeatedly (if mistakenly) represented to him that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction. Given these repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didn’t know his state court deferred judgment amounted to a felony conviction. Yet, because of our precedent in Capps, the government never had to face a trial on this question; it never had to prove its case that Mr. Games-Perez knew of his felon status. It was allowed instead to imprison him without the question even being asked.

There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land. Yet that is what Capps permits, excusing the government from proving an essential element of the crime Congress recognized. When the case was before the panel, I was bound by Capps and forced by my duty to precedent to countenance its injustice. Now, though, the case is before the en banc court. Here, Capps does not control my vote or require the perpetuation of this wrong, and here I believe it should be overruled….

The government seeks to defend Capps entirely on the basis of a legislative history exegesis found in the Fourth Circuit’s divided decision in United States v. Langley (4th Cir. 1995) (en banc). According to the government, Langley shows that, although 18 U.S.C. § 922(g)’s predecessor statutes did not contain an explicit mens rea, courts interpreting them required the government to prove that the defendant