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July 31, 2018

Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."

I blogged here about how Justice Kennedy's replacement would likely be a greater supporter of jury trial rights, and I blogged here and here and here about folks noticing Judge Brett Kavanuagh's notable statement in the 2015 Bell case (available here) 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 a jury trial."  But there is still more to this story as we await Judge Kavanaugh's confirmation hearing, and I realized as much thanks to this recent piece at the Brennan Center's website.

The Brennan Center piece noted that Judge Kavanaugh in 2009 testified to the US Sentencing Commission when the USSC was having regional public hearings to hear from stakeholders about federal sentencing.  The Brennan piece expressed concern that Judge Kavanuagh made the case for a return to a mandatory sentencing system in his testimony.  The Brennan analysis did not mention that Judge Kavanaugh in his testimony speaks out against the use of acquitted conduct (at least as a policy matter).  Here are portions of what he had to say in this testimony to the USSC and in follow-up questions:

Whether they are mandatory or advisory, I think acquitted conduct should be barred from the guidelines calculation. I don't consider myself a particular softy on sentencing issues, but it really bothers me that acquitted conduct is counted in the Guidelines calculation. I have written about this, and I think I am not alone.... It is just very problematic symbolically.

Put aside the substance, because I realize it still can come in on the back end, particularly in an advisory system, but telling a defendant, "Yes, you are acquitted but yes, we are going to calculate that sentence to include that acquitted conduct" just sends the wrong message. It seems to me in too many cases it seems inconsistent with the nature of our system. I would urge careful consideration of that issue.... (transcript pp. 41-42)

[O]ne of the things the guidelines did was to bring into the open, into the sunlight, things that had happened for years that no one knew or didn't think about in the same way, and all of a sudden you are having a precise increase based on acquitted conduct, and people say, "Well, it always happened that way."

Well, okay, but now you are actually seeing it, the actual impact.

As you say, quite rightly, no one understands that in the real world. It fails the common sense test, and it brings disrespect to the process, and it weakens confidence in the judicial process, and maybe you can reason your way from point A to point B to point C logically for why it should be part of the process, but when you take a step back, it just doesn't work, and I think even if it is purely symbolic, the effort to bar the consideration of acquitted conduct; even, in other words, if there is a logical reason to do it and the only reason not to do it is symbolic, symbolism has value in the criminal justice system at times, and I think this is one of those areas where it would be warranted.... (transcript pp. 80-81)

Of course, advocating against the use of acquitted conduct in guidelines calculations to the US Sentencing Commission is not the same as declaring the use of acquitted conduct in guidelines calculations unconstitutional. But this testimony leave little doubt as to Judge Kavanaugh's concerns about this issue, and it provides a reasonable basis for hoping he could bring some useful new perspectives to the Court on some sentencing issues.

Some prior related posts:

July 31, 2018 at 09:37 PM | Permalink


Here comes a big wave from the swamp.

We covered paths to acquitted conduct, many times, 1) terrorizing witnesses, who withdraw; 2) having two thugs insist on paying for the juror's son chocolate bar in a convenience store, because the juror's work is so important to our community; 3) brazen payoffs to parties to a trial; 4) total bias, such as an all white jury immunizing the KKK lynching of a black man, the defendants being personal friends of all the parties in the trial. Lawyer question. Has a change of venue ever been granted because the local community is biased in favor of the defendant, and nobody in the trial could ever go home again if the defendants were found guilty?

Kavanaugh does not grasp the sole value of sentencing, incapacitating the person from committing future crimes, to improve future public safety.

Posted by: David Behar | Jul 31, 2018 11:20:20 PM

As the author of an upcoming book, Letters to Our Sons, A Collection of Letters by prisoners and ex-prisoners to stop mass incarceration of our youth” I think Brett Kavanaugh saw what happened first hand when acquitted conduct was enforced in a case that he was a juror in. Very different hearing about something second hand bersus actually being a part of it. All too often we see those with darker skin or of lower socioeconomic communities charged for acts that they did not do or have been acquitted of but yet get sentenced as if they were convicted of the crime.
This can go either way as the commentator above mentioned however the law is SUPPOSED to be unbiased and (sentence based on the actual crime convicted of) therefore acquitted conduct should not play a part in sentencing. I applaud Judge Brett Kavanaugh for speaking out against it.. it is a first step...

Posted by: Dawn S | Aug 9, 2018 1:12:25 AM

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