Since Judge Kavanaugh’s nomination, significant attention has been paid to his views on a number of constitutional law issues, including criminal law. Most of the criminal law discussion, however, has focused on his understanding of the limits of the government’s search and seizure authority.
But what about other areas of criminal law? For example, how should judges apply the doctrine of mens rea? What information should be considered when sentencing a guilty defendant? What are the limits of asset forfeiture? Judge Kavanaugh’s past opinions offer brief, but notable, glimpses into how a Justice Kavanaugh may rule on these nuanced issues.
Take mens rea first. Usually, a crime requires two elements: A guilty act (the “actus rea”) and a guilty mind (the “mens rea”). When a crime requires no proof of mens rea, it is considered to be a strict liability offense. An example of a strict liability offense is selling alcohol to a minor. With strict liability, it is irrelevant whether the salesperson knew the buyer was under 21; selling the alcohol (the actus rea) is enough to commit the crime.
Strict liability – and Kavanaugh’s criticism of it – was a main issue in U.S. v. Burwell . In this case, Bryan Burwell joined in two bank heists, carrying a gun each time. Among other charges, Burwell was found guilty of carrying an automatic gun in relation to a violent crime. But there was a problem: Burwell believed his gun was a semiautomatic, and experts at trial agreed that the gun had no markings indicating it could be fired as an automatic.
The D.C. Circuit nonetheless upheld the conviction and found that the government need not prove whether Burwell knew his gun was an automatic. The decision added two decades to Burwell’s sentence, as the minimum for carrying an automatic gun during a violent crime is an additional 20 year penalty.
Judge Kavanaugh dissented, criticizing the decision and the doctrine of strict liability, calling it “harsh and in serious tension with deeply rooted principles of justice and responsibility.” Citing Supreme Court precedent and the “American legal tradition,” Kavanaugh further argued that, unless a statute clearly stated otherwise, the government should be obligated to prove both the actus rea and mens rea.
Kavanaugh has also written on another criminal law quirk: Should a judge be able to impose a higher sentence based, in part, on conduct that wasn’t charged or a defendant was acquitted of committing? Supreme Court precedent says yes, but Kavanaugh clearly disagrees. In U.S. v. Bell , for example, Kavanaugh argued that “[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”
Kavanaugh has also called for reform. In U.S. v. Settles , he proposed either Congress or the U.S. Sentencing Commission “conclude as a policy matter that sentencing courts may not rely on acquitted conduct.” And in a 2009 talk  with the U.S. Sentencing Commission, Kavanaugh again raised frustration about the complexity of the sentencing guidelines and “that acquitted conduct is counted in the [sentencing] Guidelines calculation.”
In Timbs v. Indiana, scheduled for oral argument next term, the Supreme Court will tackle the issue of asset forfeiture. In Timbs , the named-defendant pleaded guilty to a charge surrounding a $225 drug sale. Citing civil forfeiture laws, the state also seized the $42,000 Land Rover Timbs used to get and sell the drugs.
Although a rare issue in the D.C. Circuit, Kavanaugh discussed asset forfeiture in a 2010 case  where the federal government attempted to seize the assets of U.S. citizens under investigation by the Brazilian government. Kavanaugh (joined by Judge Merrick Garland) rejected the government’s attempt to seize the targeted assets. Although narrow in scope, Kavanaugh’s opinion expressed concern that, under the government’s view, a citizen’s assets could be frozen based solely on a foreign government’s allegation, before any judgement of guilt and without the right to substantive judicial review.
What Does It Mean?
Although Kavanaugh is considered  more likely to side with the government in criminal cases or national security matters, he does have some pro-defendant tendencies. His dissent in Burwell has been cited favorably by both libertarians  and liberal circuit  judges , and his views on criminal sentencing and concerns about asset forfeiture may yield surprising outcomes in future Supreme Court terms.
But given the limited number of criminal cases heard by the D.C. Circuit, and circuit judges’ obligations to follow direct precedent, there is a lot unknown about Kavanaugh’s criminal law views. If confirmed, only time will tell where Kavanaugh will make his mark in jurisprudence.
- “ U.S. v. Burwell”: https://www.cadc.uscourts.gov/internet/opinions.nsf/2741C28AEA6A76C185257A4F004FC9CC/$file/06-3070-1387345.pdf
- “ U.S. v. Bell”: https://www.cadc.uscourts.gov/internet/opinions.nsf/E8D5121C5DAA4A6085257F23006EDF3B/$file/08-3037-1590097.pdf
- “ U.S. v. Settles”: https://www.cadc.uscourts.gov/internet/opinions.nsf/6DD0BB9BD874D6C58525780000512182/$file/06-3090-1124149.pdf
- “ talk”: https://www.ussc.gov/sites/default/files/Public_Hearing_Transcript_0.pdf
- “Timbs”: https://www.nytimes.com/2018/06/25/us/politics/supreme-court-civil-asset-forfeiture.html
- “ case”: https://www.cadc.uscourts.gov/internet/opinions.nsf/1B9DC0B1D05DB6D5852578070070EC9C/$file/09-5065-1255619.pdf
- “considered”: http://www.scotusblog.com/2018/07/judge-kavanaugh-on-the-fourth-amendment/
- “libertarians”: https://www.cato.org/publications/commentary/heres-libertarian-case-brett-kavanaughs-supreme-court-nomination
- “circuit”: https://cases.justia.com/federal/appellate-courts/ca4/12-4962/12-4962-2014-01-10.pdf?ts=1410960085
- “ judges”: https://www.leagle.com/decision/infco20150626149