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:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers 
• Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely? 
• Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
• Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing? 
• An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
• With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
• A quick look at how Justice Kennedy's retirement might impact capital punishment jurisdrudence
• A (partisan) look at some of Judge Brett Kavanaugh's record on criminal justice issues