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October 14, 2014

Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg.   As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.

As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential “force as the framework for sentencing” and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84.  And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a “linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.

I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds).  In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.  

So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones?  As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).  

I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict.  (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.)   But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process. 

Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues.  As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country.  Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial."  Just a (silly?) thought.

Previous related posts on the Jones case:

October 14, 2014 at 01:44 PM | Permalink


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Are you familiar with any cases similar to Jones floating around in the pipeline? This denial of cert doesn't exactly give one confidence, but with review only a vote away maybe a later case will fare better.

Posted by: tyler | Oct 14, 2014 7:24:14 PM

told you the treanous little shits wouldn't touch it.

Posted by: rodsmith | Oct 14, 2014 10:46:13 PM

In 123D, I should clarify, those are convicted violent offenses we are counting. Not even the Supremacy thinks acquitted conduct should enter into any sentencing consideration. True I have said, a murderer may go home, and shoplifter may get executed, the first being an abused child, the second a know drug kingpin and mass murderer. But the death count must of convicted acts, and not of rumors and public reputation.

Posted by: Supremacy Claus | Oct 15, 2014 1:02:57 AM

Doug, I think EK would have voted to grant here, but there are 5 votes to affirm so she didn't. The anti-Apprendi bloc would surely vote to affirm (AMK, SGB, SAA), the Chief would probably go along, and SS doesn't see a big problem with acquitted conduct sentencing in light of the preponderance standard. That is, I think you are wrong about SS, who wrote on this issue while on CA2, see US v. Vaughan, 430 F.3d 518 (CA2 2005), and had no problem with it. She seems to have accommodated her concerns with the caveat that dcts can take into consideration the jury's verdict of acquittal when deciding whether to apply relevant acquitted conduct.

Posted by: hgd | Oct 15, 2014 3:39:47 AM

Look, the problem manifests itself in three different ways. First the person in question committed a crime. Second, that crime is the core part of a criminal offense. Finally the person in question may have a substantial risk of committing another crime. Your argument makes good sense with respect to the first, but not the second and third.

You lawyers seem to be obsessed with dumbing down the problem. I guess that's not surprising. When confronted with difficult questions people generally tend answer heuristic questions rather than the target question. Cognitive scientists call this substitution. You need a better way to deal with the cognitive load.

Posted by: Tom McGee | Oct 16, 2014 3:09:28 PM

actually Tom it's not been dumbed down enough for the retards who call themselves judged and lawyers today.

it's really simply. Under the real united states constitution if you did not both charge a crime and get a CONVITION for said crime.

YOU CANNOT PUNISH FOR SAID CRIME. Legally as far as that individual goes IT DID NOT HAPPEB,

Failure to follow this rule means your a traitor to your oath of office and as we are at war according to those same politicians. You can be executed.

Posted by: rodsmith | Oct 16, 2014 7:40:37 PM

Your substantive analysis makes some sense, hgd, but I'd like to believe that if EK felt strongly here she might be able (with some help from others) to talk SGB or AMK into some kind of nuanced constitutional avoidance middle-ground ruling that would, at the very least, demand that district judges treat acquitted conduct with less sentencing respect than proven conduct. Moreover, as my post suggests, I strongly believe that the attention this issue would garner in the press and public if cert were granted might even "shame" folks like the Chief into a better ruling than Watts and what we see in the circuits now.

Posted by: Doug B. | Oct 20, 2014 9:25:05 AM

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