Jason Swindle
Senior Partner Swindle Law Group P.C

For the second time in less than a week, conservative Supreme Court of the United States (SCOTUS) Justice Neil Gorsuch joined his four liberal colleagues in a 5-4 ruling in favor of a criminal defendant. In this federal case, Andre Haymond, who was sentenced to 38 months in prison and 10 years of supervised release claimed that it was unconstitutional for him to be sent back to prison for at least five years for an alleged new offense, when the new case was only heard by a judge using a much lower standard of proof than the typical guilt beyond a reasonable doubt standard in criminal cases.

“Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty,” Gorsuch wrote in his opinion’s opening paragraph. “That promise stands as one of the Constitution’s most vital protections against arbitrary government.”

The law in question provides that a judge must sentence an offender to a term of five years to life if the defendant is found to have violated the terms of their release by committing one or more of a category of offenses. The judge only has to find that the defendant violated the terms of release by the low threshold of the preponderance of the evidence, rather than proof beyond a reasonable doubt.

Judge Terence Kern reluctantly sided with prosecutors, but said that the law requiring such a harsh sentence was “repugnant” because it required him to send Haymond back to prison for a term that exceeded the sentencing from the original conviction.

Yet, like any good judge, he following the plain language in the statute rather than circumvent it.

SCOTUS agreed, ruling that because the new sentence was greater than what Haymond could have gotten after his jury trial, he had a right to another jury trial for the new offense. The existing law, they held, violated the Fifth Amendment right to due process and the Sixth Amendment right to a speedy and public trial by jury.

“A judge’s authority to issue a sentence derives from, and is limited by, the jury’s factual findings of criminal conduct,” Gorsuch wrote.

In another case, Gorsuch also joined the four liberal justices in a 5-4 ruling striking down an unconstitutionally vague law imposing stiff criminal sentences for people convicted of certain crimes involving firearms.

Because of these two votes, some people perceive Justice Gorsuch being liberal on criminal justice issues.

I don’t know where this notion originated that ruling for a defendant somehow makes a judge “liberal.”

A ruling protecting the Constitutional rights of a person, regardless of the charges, against the government defines the essence of a conservative act. The foundational principle of conservatism is the belief in less government power and more liberty for an individual.

Perhaps Neil Gorsuch will continue to illustrate that testing the truth does not classify a judge as liberal or conservative.