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January 30, 2023

If you never tire of acquitted conduct talk, here is a podcast episode for you

41NnUAbdjHLIn this post from the summer, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I am  putting another plug for his efforts because I had the honor of appearing in his the latest episode, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

Here is how Doug Passon sets up this nearly 90-minute podcast:

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.  But in federal court, it is not only possible, but commonplace to increase punishment based on acquitted, uncharged and dismissed conduct. The good news is, that might be changing soon.

Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”.

Warning: this episode is not for the faint of heart. No, there’s no sex, drugs, or rock n’ roll. There are probably not even that many f-bombs dropped by Doug. It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let’s get Set for Sentencing!

Prior related posts:

January 30, 2023 at 08:48 PM | Permalink


Either we're going to sentence the "whole person," as the defense bar relentlessly demands, or we're not. If we are, then let's do it. Sentencing the "whole person" BY DEFINITION requires taking account of the entirety of his behavior, good and bad. Putting to one side for the moment acquitted conduct, to forbid consideration of uncharged conduct is to forbid consideration of 99.9% of the defendant's life. That cannot possibly be squared with sentencing the whole person, and still less with the Guidelines relevant conduct rule, which for good reason has never excluded and could never exclude uncharged conduct.

Beyond that, truncating the facts allowed to be considered at sentencing to ONLY offense behavior, and ignoring the rest of the defendant's life, which is virtually all of it, would grossly undermine any hope that sentencing could help right the defendant's attitude toward life, and help set him on a path that's better for us and for him.

Posted by: Bill Otis | Jan 31, 2023 3:21:33 AM


In a just society, we should always be putting facts/factors used to punish someone (whether by intent or in effect) to a much higher burden of proof than factors used to relieve someone of punishment. So go ahead and sentence the person, but in a way that is strongly skewed for resolving disputed facts in the defendant's favor.

Posted by: Jacob Berlove | Jan 31, 2023 4:40:01 AM

Bill, if you listen to the full podcast, you will hear that I make particular efforts to distinguish between acquitted and uncharged conduct. And, returning the the focus on acquitted conduct, I wonder if you would dispute my belief that a system in which a jury acquits on significant charges and then a prosecutor seeks, and a judge still gives, a much more severe sentence based on acquitted facts may function to "grossly undermine any hope that sentencing could help right the defendant's attitude toward life, and help set him on a path that's better for us and for him."

Tom Tyler and other social psychologists have stressed that humans are far more likely to obey laws that they respect and that they believe treat them fairly in terms of procedural justice. Beyond possible constitutional infirmities, I surmise most average folks view punishment based on acquitted facts to be procedural unjust, and I do think it risks undermining respect for the law among both the law-abiding and those who we want to become more law-abiding.

Posted by: Doug B. | Jan 31, 2023 8:48:45 AM

Question for both Doug B. and Bill. O.

As I understand, the Sentencing Guidelines codified what had always been done, apparently without any complaints of Constitutional infirmity. The idea was simply the sentence may consider all relevant facts that the judge finds by a preponderance of the evidence.

Since a guilty verdict requires proof beyond a reasonable doubt, there is nothing legally inconsistent about finding a fact relevant to the *sentence*, even though that same fact was not found by the jury under a different proof standard.

I certainly understand that when you write it out in black and white, it seems odd that you could be acquitted of a charge, and yet have the same conduct counted against you anyway. But my understanding is that the process always worked that way, even if it was never spelled out until the Guidelines were written.

Posted by: Marc Shepherd | Jan 31, 2023 9:30:19 AM

Because sentencing prior to the guidelines was historically focused on rehabilitation for most of 20th century, judges never really "found facts" by a preponderance. Rather, as CJ Rehnquist effectively put the matter in McMillan v. PA (1986): "Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." And the guidelines did not "codify" anything --- neither the Sentencing Reform Act nor the guidelines put into law any formal burden of proof for federal sentencing. The guidelines merely included a policy statement noting that SCOTUS in McMillan had said that a preponderance standard at sentencing satisfied due process. I explain this history in the podcast, if you are so interested.

Your point, Marc, is one that Bill often properly makes: if you think imposing years (even decades) of imprisonment based on a civil burden of proof is just fine (both constitutionally and as policy matter), then the legal logic can be understood based on distinct proof burders. After all, as the OJ case highlights, we get how OJ could be held civilly liable for a wrongful death tort by a civil jury even after he was acquitted on murder charges by a criminal jury. But if you think there should be a big difference (both constitutionally and as policy matter) between civil process and criminal process, the use of a lower proof standard is worrisome. And if you think there is a a big difference (both constitutionally and as policy matter) between the democratic work of a jury and the bureaucratic work of prosecutors and judges, the use of a lower standard of proof to punish based on jury-acquitted facts is especially disconcerting.

Last key point: the Supreme Court's Apprendi / Blakely / Booker / Cunningham / Southern Union / Alleyne jurisprudence makes clear that if any fact finding has any binding legal impact in shifting the formal legal range of punishment in any way, that fact has to be found beyond a reasonable doubt. In other words, this long line of cases rejected the idea that acquitted facts can be used by judges to formally shift the legal range of punishments. We are now just debating whether acquitted facts can still be used by judges when decided what sentence to give within ranges established by properly found facts. (And this still matters a lot in the federal system because the statutory sentencing ranges are huge and the guidelines are only advisory.)

Posted by: Doug B | Jan 31, 2023 10:29:13 AM

Technical point--the fact that criminal acquittals don't foreclose civil judgments really doesn't have to do with burden of proof, but rather the limits of estoppel. Obviously victims aren't bound by proceedings to which they are not a party. See Martin v. Wilks.

The question is always the same--what is the definition of "acquitted conduct" such that the conduct may not be used by the judge in sentencing.

Posted by: federalist | Jan 31, 2023 11:29:51 AM

federalist, the threshold question is whether there is any restrictions on judicial use of acquitted conduct/facts at all. Bill advocates there should be no restriction no matter how we define "acquitted conduct." Bill also believes, I am pretty sure, that the Apprendi/Blakely/Alleyne line of cases are wrong.

Posted by: Doug B | Jan 31, 2023 11:53:46 AM

Well, I am an Apprendi fan; so maybe Bill and I part company on that issue. What is the constitutional argument that the use of acquitted conduct (and it has to be defined) in sentencing is forbidden?

Posted by: federalist | Jan 31, 2023 12:03:53 PM

You could make a due process argument out of issue preclusion, I think.

Posted by: federalist | Jan 31, 2023 12:04:41 PM

federalist: I view constitutional text concerning jury trial rights, as well history and tradition (which are well articulated by multiple Justices in the Apprendi/Blakely/Alleyne line of cases) as strongly supporting limiting acquitted conduct/facts in aggravation at sentencing. I have developed some of these ideas in a couple older articles:
Conceptualizing Blakely: https://sentencing.typepad.com/sentencing_law_and_policy/files/final_conceptualizing_blakely.pdf

Conceptualizing BookerL

For an argument based on due process, the Michigan Supreme Court has talked this through in Beck: https://law.justia.com/cases/michigan/supreme-court/2019/152934.html

Posted by: Doug B | Jan 31, 2023 12:32:01 PM

Marc Shepherd --

You are correct.

Doug --

I did not listen to the podcast. I went solely off what is written in the entry, which states that Mr. Passon is taking on uncharged conduct in addition to acquitted conduct. My criticism of ignoring uncharged conduct is stated above and I have no changes to make, except to add that no jury has spoken to uncharged conduct, and therefore the main gripe against considering acquitted conduct (disrespect to the jury's verdict) does not apply to things that have not been before a jury.

I have already discussed the reasons supporting the Watts rule (a 7-2 decision) and for once I'm going to let enough be enough.

Posted by: Bill Otis | Jan 31, 2023 1:44:35 PM

Doug --

I will make an observation on your argument that the system will operate better if the criminal thinks it's been fair with him.

First, "fairness" is a vague term, so there are likely to be disagreements about what it means. The defendant does not get to decide that question for the debate in general, since he has, shall we say, a conflict of interest. Specifically, he's already said, falsely, he did nothing legally wrong (that's why he pleaded not guilty). He's not well situated to make a dispassionate and reliable judgment.

Second and more generally, it's unwise, indeed it's foolhardy, to let criminals decide what's fair. Democratic and standard judicial process get to decide it. This is the reason for the old and wise rule that no man gets to be the judge in his own case.

Third, it makes no difference what he (or you or I) individually thinks is fair. If someone thinks, as many do, that "taxation is theft," do they get to pay no taxes because they think it's unfair? If someone thinks that the law against selling heroin (or meth or other drugs) is unfair, does that view get to tell the tale at his sentencing for selling an overdose amount to a 15 year-old?

The whole idea of the social contract and the rule of law is that democratic process, and not individuals (and still less individual criminals) get to decide what's fair. If there's dissent about that, fine -- make your pitch at the next election.

Posted by: Bill Otis | Jan 31, 2023 2:15:59 PM

Reasonable points, Bill, though I will remind you that the House of Representative (arguably the most "democratic" of federal institutions) last year voted overwhelmingly, by a margin of 405-12, for the "Prohibiting Punishment of Acquitted Conduct Act of 2021." And, to the extent you want to respect the "democratic process" in the judiciary, Justice Scalia rightly reminded us in Blakely that the jury and not the judge is the voice of the people in the courtroom. Also, notably, the Prez appointed and Senate-confirmed US Sentencing Commission is now proposing limits on the use of acquitted conduct. (And, as I "read the room," the democratic process of Senate confirmation kept your opinions on this issue (and others) off the Commission.)

In other words, I believe the democratic process is mostly on my side on this issue these days. But, of course, for constitutional purposes the text, history, tradition and values of our founding document exist to place some side constraints on that process. Those I think all strongly suggest it is "unfair" to punish a defendant based on acquitted conduct/facts.

Posted by: Doug B. | Jan 31, 2023 2:41:30 PM

Doug --

The democratic process under our Constitution requires both chambers. And it's easy for Members to cast a throw-away vote when they know the legislation will be DOA in the Senate anyway.

As to the brilliant Justice Scalia: He voted with the Watts majority without a single word of dissent, and I know of no opinion in which he stated, "In retrospect, I think Watts was wrongly decided," or anything else in which he questioned Watts by name.

"And, as I "read the room," the democratic process of Senate confirmation kept your opinions on this issue (and others) off the Commission."

Wrongo. Neither I nor Bill Pryor got "democratic process," i.e., a floor vote. There were bigger fish to fry than a watered-down Sentencing Commission. If we'd been given a vote, it's a matter of speculation how it would have turned out. I liked my chances on the floor, but my speculation is no better than anyone else's. Still, it was an honor to be nominated, and instead of being a sourpuss about the non-vote, I'm grateful for the many who were in my corner, and for the opportunities the future may bring.

Posted by: Bill Otis | Jan 31, 2023 2:58:32 PM

I think a textual argument is very hard and has to start with a definition. As you stated in another thread--the hate crime acquittal for a racial slur during a robbery would not foreclose use of slur in sentencing (subject to not being able to increase max sentence). I think you're left with principles of issue preclusion, and those would be pretty narrow.

Posted by: federalist | Jan 31, 2023 6:12:45 PM

Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." I trust you would agree that this text would be violated if a criminal defendant "enjoyed" an impartial jury on a one-count hate crime indictment, the jury acquitted on that one-count hate crime indictment, and yet the prosecutor and judge both agreed that the defendant needed to be imprisoned anyway for a year because the defendant used a racial slur. Seems to me to be the same textualist story event if the defendant is convicted on a second robbery count. You did not "enjoy" a jury trial --- and so the text of the Sixth Amendment is violated --- if you are criminally punished based expressly on acquitted facts or counts.

Posted by: Doug B | Jan 31, 2023 6:41:17 PM

That's not my hypo--let's say a person robs another and in the course of the robbery calls the victim the n-word--prosecutor charges robbery and racial intimidation. Let's say max penalty for robbery is 10 years and jury convicts on robbery but acquits on intimidation. The elements of intimidation are more than just an utterance. Judge says, ok, you're getting 9 1/2 years, in part because you made the victimization worse with the slur. That's totally constitutional.

Posted by: federalist | Jan 31, 2023 6:47:37 PM

As we have discussed before, there can be broad and narrow definitions of prohibited acquitted facts/conduct at sentencing and there are devils in the details. But, again, the preliminary issue is whether, even with the most narrow definition and a clear verdict of acquittal because the jury decided the defendant was not the shooter, can a prosecutor/judge still say "we think you are the shooter" and we are punishing you accordingly? Bill says yes, I say no and I think I am on the side of the Framers and honoring the text and meaning of the jury trial right.

Posted by: Doug B. | Jan 31, 2023 7:05:58 PM

I think, Doug, if your view is to avail, it's going to have to borrow from Double Jeopardy law and will have to look at elements of crime. If one element is not met, then the jury acquits, and you won't know what other elements weren't satisfied. I think you have serious problems with articulating a constitutional test. Care to give it a try?

Posted by: federalist | Feb 1, 2023 9:30:15 AM

Sure: "As explained in Apprendi and Blakely, we must give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. Apprendi and Blakely help carry out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict.

But this design is obviously undermined when a sentence can balloon from as little as five years to as much as life imprisonment based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong. As Apprendi and Blakely held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. And when a prosecutor tries and fails to prove all the facts legally essential to conviction on a particular charge, a judge may not expressly rely on those facts rejected by a jury to increase the defendant's sentence on other charges even when otherwise operating within the range for other other charges."

How is that? It drawn 95% on language from Blakely. It does not resolve every nuance, as Apprendi and Blakely did not resolve every nuance. But it advances the ball in a way that I think the Framers would have wanted and that most Americans believe it already fundamental to the operation of our justice system.

Posted by: Doug B | Feb 1, 2023 10:17:21 AM

I don't think this does a whole lot in terms of setting forth a test that would show when the Sixth Amendment bars consideration of certain "acquitted" facts in the sentencing decision. I'll give you an example--let's say three guys burgle a house, and one of the a-holes rape the 16 year old girl who's home alone. Jury acquits the other two on charges of rape (which charges would be 100% justified). Could a sentencer take into consideration that the two failed to stop the rape? How about saying that the rape wouldn't have happened but for the contribution of the acquitted criminals? Could the sentencer just say, well, a rape happened in the course of your burglary.

Posted by: federalist | Feb 1, 2023 10:42:27 AM

Reasonable questions, federalist, about the reach and application of limits on "acquitted conduct" sentencing enhancements, kind of like all the reasonable questions I still have about the reach of the prior conviction exception to Apprendi 25 years later. And kind of like all the reasonable questions surrounding the reach and application of probable cause and the right to bear arms and excessive fines and so on and so on. And that is why it is so important to move forward ASAP: there are hard questions that follow what should be a simple question: can a judge completely ignore a jury acquittal to sentence a defendant exactly as he would have if the jury convicted.

Posted by: Doug B | Feb 1, 2023 11:59:06 AM

What are the answers to my reasonable questions? I think that the sentencer could use the rape in making his burglary sentencing decision. So let's take the Supreme Court case facts--guy was acquitted of murder, but it is unquestioned that someone died as a result of the robbery of the drug store. Hmmmm.

I think that this case is actually winnable for the defendant. But I think you have to create a narrow rule. The jury's verdict, in effect, split the two crimes temporally.

Posted by: federalist | Feb 1, 2023 12:55:48 PM

The answer to your reasonable questions about the proper reach and application of limits on "acquitted conduct" sentencing enhancements is the classic law school answer to all reasonable questions: it depends on the facts/details.

But, for now, the Watts case is (over)read for the very broad proposition that there are absolutely no constitutional limits on "acquitted conduct" sentencing enhancements "within range." I surmise you share my view there should be, at least, some a "narrow rule" that poses some limits on how judges can use acquitted facts to increase a sentence. So we are on the same basic constitutional page --- and the particular can only get worked out if/when the Supreme Court agrees to consider whether there is any limit whatsoever.

Posted by: Doug B | Feb 1, 2023 1:08:33 PM

I think we're on the same policy page--I think that there may some constitutional limits here, but they are likely to be easily evaded. I think, in this case, the jury's verdict ended the causation chain that was being elongated to start with.

Posted by: federalist | Feb 1, 2023 1:24:36 PM

Lots of constitutional limits have proven easy to evade, but that not a reason to not set out such limits and then to encourage such limits to be respected and enforced. Right now there are no established limits, which gives prosecutors and judges not merely authority, but often an obligation, to give full effect to acquitted facts. That is one point I make in the podcast.

Posted by: Doug B. | Feb 1, 2023 2:12:23 PM

In my hypo about the rape, if you were a sentencer, would you take it into consideration when sentencing the acquitted of rape burglars?

Posted by: federalist | Feb 1, 2023 3:46:14 PM

Regarding “acquitted conduct” or “uncharged conduct.” Forgive me for being a lay person.

Let’s say a prosecutor drops a rape charge as part of a plea deal to admit guilt to murder.

For those opposed to acquitted or uncharged conduct being used, would that mean a judge could not factor in the rape for sentencing?

If so, that seems like a hefty piece of BS to me.

Posted by: TarlsQtr | Feb 1, 2023 4:30:33 PM

Tarls, your concern is exactly why I think it important to distinguish --- both as matter of constitutional law and other law/policy --- between acquitted and uncharged conduct. At issue with acquitted conduct is whether prosecutors, after pursue and lose on certain charges (ie, a jury acquits), can still argue for a longer sentence based on the facts that were at issue before the jury.

There are lots of variations on this issue: eg, in one of the set of cases before SCOTUS, a defendant pleaded guilty in federal court to marijuana possession and possession of a firearm by a drug user, and at sentencing the federal prosecutor wanted to use evidence from a state acquittal on a much earlier shooting charge to provide the basis for a longer federal sentence on the new charge.

Posted by: Doug B | Feb 1, 2023 5:40:39 PM

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