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September 2, 2018

After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation

I am always pleased when politicians show a willingness to "evolve" on various issues, especially when they evolve toward a position that I embrace.  So I am quite pleased to see this lengthy new SCOTUSblog commentary by Senator Orrin Hatch under the headline "Judge Kavanaugh’s fight for stronger jury rights," which assails "basing prison sentences on conduct for which a defendant has been acquitted by a jury." I recommend the piece in full, and these particular passages justify both praise and follow-up questions:

Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants.  One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury.  It’s a practice as outrageous as it sounds....

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”  The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment....

In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge.  Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice.  Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”...

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct.  Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound — and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness — Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”...

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct.  But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law.  I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.”  The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do.  It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct.  However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

I could not be more thrilled to hear a prominent experienced Senator calling acquitted conduct sentencing "outrageous" and asserting that "this practice must end."  I am also over the moon to hear that Senator Hatch is soon to introduce the "Acquitted Conduct Sentencing Reform Act," and I sincerely hope some folks have the sense to try to role it into the on-going federal prison and sentencing reform bills working their way through Congress. 

But I have to ask, as follow-up question number one for Senator Hatch, what took you so long?  The ugliness of acquitted conduct sentencing has been on full display since the 1997 Watts decision and your commentary here also references the 2014 dissent from certorari by Justice Antonin Scalia in an acquitted conduct case.  And Judge Kavanaugh has been calling for the barring of acquitted conduct guideline enhancements for nearly a decade.  Moreover, Senator Hatch, you served a chair of the Judiciary Committee at the time Watts was decided and also when Blakely was decided and Booker was before SCOTUS.  For those of use who have long railed against acquitted conduct sentencing, it sure would have been nice to have an ally like you, Senator Hatch, much sooner than a few months before your retirement after more than four decades in charge of helping to make the rules for the federal sentencing system.

That all said, my biggest follow-up question is for every other member of Congress: Are you willing to sign on ASAP to the "Acquitted Conduct Sentencing Reform Act" and commit to making its passage a fitting going-away present for Senator Hatch.  Because I agree with Senator Hatch that acquitted conduct sentencing is "outrageous" and is a practice that "must end," I hope all members of Congress join in on the Senator Hatch acquitted conduct (r)evolution.

A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:

Previous related posts on the acquitted conduct stressed by Senator Hatch:

September 2, 2018 at 04:40 PM | Permalink


I still don't think it will make one iota of difference in anyone's sentence. All it will do is require judges to think up a new and different excuse.

Posted by: Daniel | Sep 2, 2018 5:04:34 PM

If sentencing is really to reflect the totality of the offender's circumstances then I fail to see how there is any problem with acquitted (or even uncharged) conduct being accounted for. As the good senator states the two phases require two very different levels of proof. This is something for Congress to fix, not the Court.

And Congress could alter the calculus without even outright barring consideration of acquitted conduct. For example, Congress could change the burden to clear and convincing evidence rather than preponderance.

Posted by: Soronel Haetir | Sep 2, 2018 5:30:35 PM

Acquited conduct and uncharged relevant conduct need to both go to the dumpster.

Just no end to the "enhancements" that the feds ratchet up sentences.

Ridiculous. Also need to reduce supervised release time and serve 65% of theses ridiculouly long worthless sentences. Feds are out to put people away for better part if their life. Then, oh my gosh, the guy cant get a worth while job. Dah.

Posted by: MidWestGuy | Sep 2, 2018 7:37:52 PM


With all due respect, your comment reminds me of a great line from a book called "Language and Litigation" by former UVa Law School professor, Ron Sokol. "Logic says nothing, but it says it with rigor."

You have parsed the two standards of proof required for conviction and admissibility of evidence at sentencing, and come up with a "logical" position that lacks common sense and fundamental fairness.


Posted by: bruce cunningham | Sep 2, 2018 10:02:42 PM


You and I have very different standards of fairness. I've said plenty of times that I believe a felony conviction should automatically place the burden on the convict to show why they should not be executed. Surely simply using acquitted or uncharged conduct to extend a prison sentence is more 'fair' than that?

Posted by: Soronel Haetir | Sep 2, 2018 11:12:53 PM

The judge should do some time for sentencing a human to prison on facts for which he was acquitted. Time in Hell!

Posted by: Liberty2nd | Sep 3, 2018 9:40:11 AM

Soronel, it's a federal felony to embezzle $1,000 from a bank. Are you suggesting that such a conviction should automatically place the burden on the convict to show why they should not be executed? If so you should move to Iran or China. But even there, folks would probably put you in the loony bin.

Posted by: Nancy | Sep 3, 2018 6:18:53 PM


I would place the break-over point at any crime more serious than the theft of a couple hundred dollars so your hypothetical embezzler would easily qualify. And I would not be particularly bothered until execution resulted from a theft in the low tens of dollars (call that point something like $25-$30).

Posted by: Soronel Haetir | Sep 3, 2018 10:41:54 PM

Daniel, I beg to differ - I know many prisoners who got enhancements for acquitted conduct, such as Richard "Dickie" Lynn who #CANDO is seeking clemency for. We have letters from the arresting DEA agent, and highly decorated law enforcement agents who want Dickie set free and here is Dickie's summary of this article: I was ''enhanced'' 8 points (which took me from 24 years to LIFE!!) based on ''acquitted conduct'' Take Care Dickie. He would be HOME now if not for those enhancements. I continually marvel when people who have never been on OUR end of a sentence make such broad sweeping claims that a decision/a precedent, or a new law, won't make any difference for those languishing behind bars.

Posted by: Amy Povah | Sep 5, 2018 12:36:16 PM

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