« Another look at some of the post-Bruen Second Amendment uncertainty | Main | DC Council overrides DC mayor's veto of significant criminal justice reform bill »

January 17, 2023

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."

January 17, 2023 at 11:59 AM | Permalink

Comments

What's your definition of "acquitted conduct"?

Posted by: federalist | Jan 17, 2023 12:02:06 PM

Anyone know what's up with Novak v. City of Parma? The docket shows the reply brief was received January 6th, but I don't see any further updates. Wouldn't the case have already been considered in conference?

Posted by: Poirot | Jan 17, 2023 1:19:12 PM

Response by City of Parma (a joke, by the way) was filed. Now Nowak has to reply. Then they will consider it.

My question is why the prosecutors still have a law license.

Posted by: federalist | Jan 17, 2023 1:32:28 PM

I find good enough, federalist, the definition in the federal bills that have been proposed on this topic: "an act for which a person was criminally charged and with regard to which that person was adjudicated not guilty after trial in a Federal, State, or Tribal court." I am also fine with the USSC's prposed definition: "'acquitted conduct' means conduct (i.e., any acts or omission) underlying a charge of which the defendant has been acquitted by the trier of fact or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or an analogous motion under the applicable law of a state, local, or tribal jurisdiction."

Posted by: Doug Berman | Jan 17, 2023 2:11:48 PM

Yeah, but how would that definition work in the case of a hate crime acquittal where racist language was used to make the assault worse?

Posted by: federalist | Jan 17, 2023 2:19:55 PM

In the federal system, I have not seen any examples of such acquittals where there was no dispute that racist language was used. We might imagine a variation on the Apprendi case in which the shooter first said, then retracted his claim, that he shot at his neighbor's house because the family was African-American. If this was a jury case and a jury acquitted on a finding/charge "that the crime was motivated by racial bias," then I do not think the sentencing judge could use any belief/claim that the crime was racially motivated to increase the sentence for the shooting. Once acquitted on a charge, the acts/facts clearly decided by that charge for which the person was adjudicated not guilty cannot be used at sentencing.

Posted by: Doug B | Jan 17, 2023 3:28:31 PM

My understanding from what I have seen over the past several years on Scotusblog is that (with a handful of exceptions like the long conference) the first relist is generally a good sign which dramatically increases the likelihood that the Supreme Court will grant certiorari but that additional relists tend to reflect that an opinion is being drafted related to the denial of certiorari.

Posted by: tmm | Jan 17, 2023 5:45:29 PM

But while discussing this week's grants, is there any case that will be heard this term which is really, really big in terms impacting a large number of criminal cases? Most of the cases appear to be about specific statutes (with two involving First Amendment claims) or some relatively minor procedural issues that (barring an opinion that is really out there) will not impact that many cases.

Posted by: tmm | Jan 17, 2023 5:48:51 PM

Unless we are to have a radical repudiation of long existing law, the standard of proof for facts at sentencing should remain a preponderance. What a jury or juries have found or failed to find operating under a more exacting standard is not relevant. This is easy to understand. The evidence about Fact X may be deficient to establish it BRD, but adequate (or more than adequate) when assessed under the preponderance test.

Posted by: Bill Otis | Jan 18, 2023 3:24:10 AM

"[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—of whatever sort, ... the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime."

The words above are those of Justice Thomas in his dissent in Appendi. Those words highlight the problem with your approach Mr.Otis. That is, we are losing sight of what should be deemed sentencing factors versus what should be recognized as elements of the offense. Justice Thomas had the right approach because it's the one that the Constitution requires.

Assuming the court is finding some 'offender' related characteristic by a preponderance, that's fine. But when a court (as happens far too frequently) begins to determine offense related facts by a preponderance, he is in essence finding the defendant guilty of an 'aggravated crime' by a preponderance. This can't be right.

Recall that a jury did not convict Paul Manafort of multiple crimes. Therefore, how could the judge find those very same facts---and use those facts to find that he committed what is in effect the functional equivalent of an 'aggravated crime,' by a preponderance of the evidence? Eventually, the Supreme Court will have to address this un-democratic feature of federal law.

Posted by: Eric A. Hicks | Jan 18, 2023 8:42:30 AM

So, Doug, just so i am clear as to your position. During a robbery, the perp utters racial slurs as part of the robbery--it is charged as a hate crime, but just acquits--you are saying that the judge has to ignore (let's just say) undisputed fact that perp uttered racial slurs because jury acquitted on hate crime (which requires more than just uttering a slur).

That makes absolutely no sense.

Posted by: federalist | Jan 18, 2023 9:09:04 AM

I don't think the judge would have to ignore that fact. Remember, these offenses have statutory ranges from, say, 0-20 years for example. On the federal level, his guideline range for the offense may be 57-71 months (just based solely on the factors found by the jury). I think it would be wrong for the judge enhance (using one of the offense-related enhancements in Chapter 2 related to hate crimes) his sentence for using the slur.

But, under Booker the judge could still, without using the Chapter 2 enhancements, give him an upward variance for using the slur. This upward variance could possibly change his guideline range to 108-121 months. I don't agree with that variance but it would quite possibly still be legal if the Supreme Court bans the use of acquitted conduct.

Posted by: Eric A. Hicks | Jan 18, 2023 9:26:52 AM

Why wouldn't you agree with upping the sentence--gratuitous racial slurs in the course of a robbery (or rape) or any crime hurt victims, and punishment should reflect that.

So now how do we distinguish between acquitted conduct that bars use of facts vs. acquitted conduct that does not?

Posted by: federalist | Jan 18, 2023 10:14:05 AM

No system is perfect. I think the guidance of Justice Thomas in his dissents in Appendi and Booker and the concurring opinions of Justices Thomas and Scalia in Rita are the guiding lights on this topic.

Yet, I think this would go a ways towards solving the dilemma you presented: a defendant is convicted of a certain crime and acquitted of certain conduct by the jury. His hypothetical guideline range is 188-235 months. If the court believes that the defendant committed some of the acquitted conduct, the court would impose a sentence at the top of that range as opposed to the bottom. That would represent an additional 4 years.

I think that route is less controversial. The judge is free to consider any and all conduct within the guideline sentencing range. The more leeway a court is given to go beyond that hypothetical 235 months mentioned above, we will find ourselves unmoored from the protections that Justices Scalia and Thomas envisioned the Sixth Amendment providing.

Posted by: Eric A. Hicks | Jan 18, 2023 10:44:49 AM

federalist, I would not call the claimed racial slur an "undisputed fact," I would call it an "acquitted fact." And I do not want any acquitted fact used to expressly increase a sentence at all.

Now, one can get slippery and ponder whether it should be okay for the judge to say: "Well, the jury says this crime was not 'motivated by racial bias,' but the victim felt as though it was and the harm and hurt of the crime was greater because the victim felt he was the subject of discrimination. So I respect the jury determination that the defendant was not guilty of a hate crime, but I still think the extra harm felt by the defendant is a relevant sentencing consideration that calls for a longer sentence." In that case, I would probably be okay saying the judge did not unconstitutionally rely on an acquitted fact (defendant motivation) but rather relied on a (distinct?) permissible fact (peceived harm by victim).

That hypo is one of many reasons this gets challenging to apply and enforce in various settings. But, of course, the same is true in all sort of other sentencing settings. The Guidelines currently say that socio-economic status is "not relevant in the determination of a sentence." But judges often seem influenced by whether a defendant has a good or bad employement history or comes from a good or bad home.

Posted by: Doug B. | Jan 18, 2023 12:57:44 PM

But it wasn't an "acquitted fact"--merely calling someone a racial slur doesn't mean that a hate crime occurred--jury could easily find that the crime wasn't motivated by race, even though a racial slur was used. So we agree on that--but it's hard to call that an "acquitted fact." My view is that the jury's verdict and the implication thereof needs to be taken into account, and the judge has to address it in a meaningful way.

If I were a judge, and a criminal called the victim(s) racial slurs, that criminal is getting the hammer.

Posted by: federalist | Jan 18, 2023 1:34:45 PM

https://www.lifenews.com/2023/01/18/bombshell-evidence-could-stop-joe-bidens-bogus-prosecution-of-pro-life-dad/

This is OT, but interesting.

Posted by: federalist | Jan 18, 2023 1:48:28 PM

Few claim, federalist, that a judge should not be able to consider/use "relevant conduct" that was NOT adjudicated through an acquittal -- and that's why precisely defining what is to be prohibited "acquitted conduct" is both challenging and important. But, as of now, judges are ordered by the operation of the guidelines' relevant conduct rules to consider any and all facts without giving any respect or even attention to the "jury's verdict and the implication thereof." Bill Otis seems to think that is hunky-dory, whereas I sense you share my view that there ought to be limits in our law on thr consideration of true acquitted conduct. I think those limits can and should be in our guidelines and in our statutes and in interpretation of the Bill of Rights.

Bill more generally does not understand legal history when he says it would be a "radical repudiation of long existing law" to move away from a preponderance standard. Actually, as SCOTUS noted in McMillian (1986): "Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." The true tradition, based in part in waxing and waning of judicial discretion at sentencing, is to have little or no defined substantive or procedural law at sentencing. The guidelines/structured sentencing era, starting around the mid 1970s, brought these issues into sharper relief, and the adopting of a civil standard of proof at sentencing by various jurisdictions has always struck me the real "radical repudiation of long existing law." To some extent my views were somewhat vindicated by the Apprendi/Blakely lines of cases, but there is still a lot more work to do.

Posted by: Doug B | Jan 18, 2023 3:02:27 PM

How does your position flow from Apprendi?

Posted by: federalist | Jan 18, 2023 3:20:04 PM

The NJ statute struck down in Apprendi expressly provided for a judge's preponderance fact-finding to be the basis for raising the legal sentencing range. The Court decided this was both a 5th A violation (for the proof burden) and a 6th A violation (for the decision-maker). These pieces often travel together (proof standard and fact-finding), but they need not conceptually (though some might say they have to originally or should functionally).

Posted by: Doug B. | Jan 18, 2023 3:27:50 PM

Doug --

You know perfectly well that the standard of proof of facts used at sentencing is preponderance. If you don't know, go down to district court for a month (it's OK to leave academia every now and again) and see how many times the standard employed at sentencing is anything OTHER than preponderance.

If it weren't preponderance, you would have won this acquitted conduct issue long ago instead of consistently losing it and having to wail to SCOTUS (unsuccessfully) about it over and over and over.

Posted by: Bill Otis | Jan 18, 2023 3:29:43 PM

Doug --

I neglected to note this gem in your most recent comment: "... the adopting of a civil standard of proof at sentencing by various jurisdictions has always struck me the real 'radical repudiation of long existing law.'"

Translation: "The adoption of law by standard democratic and judicial process is the repudiation of law."

Ahhhhh, the Alice-in-Wonderland perspective of lawyers. No wonder the cops have three times as much respect, https://news.gallup.com/poll/467804/nurses-retain-top-ethics-rating-below-2020-high.aspx

Posted by: Bill Otis | Jan 18, 2023 3:40:01 PM

Bill, in every criminal case for every finding of guilt and for all "facts [that] alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment," they all have, as a matter of constitutional law, to be found BRD (as Justice Thomas clarified these constitutional matters in Alleyne). And this applies to any and all "acquitted conduct" that formally impacts the legal range of punishment. So the constitutional principles in the Bill of Rights that the Framers gave us did partially "win" on this issue via Apprendi et al.

But there are residual issues qith use of acquitted conduct in a few dozen federal cases because of how Booker and the guidelines are still being applied to treat acquitted conduct like other conduct (notably, a number of states have inpreretted constitutions to bar acquitted conduct enhancements). I am not aware of anyone who argues the Framers would be proud of acquitted conduct enhancement or that it advances the values of our crminal justice adversary system. You are right that, to date, SCOTUS has been content to allow continued judicial consideration of acquitted conduct despite the lack of textual or originalist justification for doing so (though you may have a living constitution argument up your sleeve).

But I remain hopeful that a proper constitutional interpreation will prevail. Opponents of Plessy and Roe and all sorts of other precedents kept losing until they won (and I trust you do not think Miranda is good constitutional law even though you have lost your various campaigns to overturn that decision).

Posted by: Doug B. | Jan 18, 2023 3:44:12 PM

Bill, in Apprendi, the US Supreme Court repudiated the effort by NJ's legislature and NJ judiciary to provide for greatly enhanced sentences if a trial judge finds, by a preponderance of the evidence, certain offense facts. Which body was involved in the "standard democratic and judicial process" in this story? Was it the NJ players embracing a civil standard for enhancing sentences based on offense facts? Or was it SCOTUS that rejected this embrace of a civil standard (what Justice Scalia attributed to effort to achieve a "bureaucratic realm of perfect equity") and instead vindicated a far more traditional criminal adversarial approach which required, in the words of Justice Thomas (citing Justice Story) that "for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt)."

Also, I challenge you to find anyone who will say with a straight face that the enhancement of punishment based on acquitted conduct increases respect for law or lawyers or the courts. As federalist likes to say, you are really clowning yourself here.

Posted by: Doug B. | Jan 18, 2023 4:26:50 PM

Doug, my hypo shows just how difficult the issue is. "Acquitted conduct" is a complete misnomer, and it's not really implicated by Apprendi.

Posted by: federalist | Jan 18, 2023 4:33:28 PM

Doug --

Still refusing to go down to court to see what the standard of proof for sentencing is? Goodness gracious!! Are all those sentencing judges who use it decades after Apprendi a bunch of dopes? And all the appellate judges who affirm them?

Just as with appeal waivers, an issue I won and you lost (and continue to lose), you just refuse to believe that the pro-criminal side is ever wrong.

You sound more and more like Trump: When you win, you win, and when you lose, YOU WUZ ROBBED!!

Talk about beclowining.

Posted by: Bill Otis | Jan 18, 2023 4:47:34 PM

As federalist likes to say, you are really clowning yourself here.

Well, Doug, at least Bill isn't trying to supply mens rea for mistakenly pulling a gun instead of a taser by virtue of a failure to assist statute.

Posted by: federalist | Jan 18, 2023 4:48:24 PM

federalist --

Thanks!

I comment less here than I used to largely because I now do a Substack newsletter called Ringside at the Reckoning, see, e.g., here: https://ringsideatthereckoning.substack.com/p/who-bears-accountability-for-violent

The other reason I comment less is that SLP now seems to me to tilt more toward cheerleading than it did before, although there has always had some of that.

Posted by: Bill Otis | Jan 18, 2023 5:16:07 PM

Great to see you Bill.

And maybe if Doug would explain how difficult the idea of "acquitted conduct" really is, then we could have fair debates about how we should deal with jury acquittals that accompany guilty verdicts. And let's not even get into inconsistent verdicts.

Posted by: federalist | Jan 18, 2023 5:31:12 PM

federalist: on the MN case, I was primarily making the point that if you spent a little time actually looking at the actual arguments made by prosecutors in the actual case, rather than just relying on a video, you might have a more complete understanding of what happened in that case as it resulted in a jury conviction. But, lots of people who make lots of judgments after just seeing a video, so you have plenty of company in wanting to reach your own conclusions based on limited evidence.

On "acquitted conduct" sentencing I have said repeatedly that this issue is challenging in its particulars. But I do not see how this is a "complete misnomer" when I and others (including members of Congress and the USSC) are expressing concern about judges using facts directly related to acquittals to significantly increase a sentence. What terminology do you think better fits?

Bill: Are there more left-leaning comments at your Substack than you and Tarls, and federalist and some others provide here? I have seen little, though I often stop reading when I see comments like "America is now a banana republic" or "This is all part of the Commie Purges of the cities." Perhaps because you like your political bubbles, you do not even think you need to understand that Apprendi (and Blakely and Alleyne) clearly repudiate some efforts to rely on a civil standard at sentencing, and then the question is where else this modern invention is permitted to persist. You are right that it persists in adviosry guideline calculations in federal courts, but I believe you think this system should not be advisory, and so you would have to forego preponderance sentencing. Do you dispute that reality: that to have a mandatory sentencing system you cannot use the civil standard of proof anymore?

Posted by: Doug B | Jan 18, 2023 5:38:53 PM

"relying on just 'a' video"--there you go again. I was relying on "the" video. But also the admission of all involved (judge, defense and prosecutor) that she mistakenly took out her gun while intending to take out the taser. If the English language means anything (and when it comes to criminal statutes, the English language has to, you know, mean something--that pesky Due Process thingy), then that admission is inconsistent with the "conscious" mens rea. So then you go fishing for the "didn't assist" the criminal---well, she wasn't charged with that, there's a causation issue and a complete defense under that statute, and that doesn't go back in time and create mens rea for the shooting itself. Where is the PC based on the shooting itself that she was conscious of the gun? It's gotta be articulable, and I ain't heard it.

At least you're not calling me a big meanie for impugning the jury.

Posted by: federalist | Jan 18, 2023 5:48:55 PM

Ah yes, federalist, watching "the video" is all that really matters to reach a judgment that judge and jury got it all wrong, but taking a few more minutes to read some of the actual arguments made by the prosecutors is "fishing." Okay, I will try not to slow down you down jumping to conclusions by wasting time fishing in the future. But this MN discussion is already very tired, and much less interesting to me than what you mean to be saying about "acquitted conduct" sentencing.

Can you explain what you mean with your misnomer comment and are you coming to Bill's view that there is nothing of concern here at sentencing or are you trying to make a different point? Of course, an acquittal on one count does not resolve every issue or fact related to every other count. But do you think the guidelines calculation should be exactly the same regardless of whether McClinton was convicted or acquitted of the counts on which he was acquitted? Same for the Jones case from way back when? That is what I consider the "core" problem -- that prosecutors can bring extra charges, lose, and actually benefit at sentencing from losing.

Posted by: Doug B | Jan 18, 2023 6:01:29 PM

Doug --

"Are there more left-leaning comments at your Substack than you and Tarls, and federalist and some others provide here?"

There are fewer dissenting commenters at Ringside than you have dissenting commenters here, but there's a reason for that: Your blog does not expressly take a point of view but mine does. We announced right at the get-go that it was a conservative platform:

"Ringside at the Reckoning" will provide independent-minded conservative commentary. Paul will write the kind of posts he produced for Power Line -- mostly about politics and public policy, but with the occasional quirky sports bit (e.g., soccer and 1970s baseball) mixed in. Bill will write about crime and criminal law, of course, but will be able to branch out into the wider world of conservative concerns.

Both authors are dismayed by the left's assault on norms and standards. Paul started writing about this at least a decade ago in a series called "the war on standards." Back then, the war was a series of occasional guerilla operations. The idea was to pick off and water down a standard here and there -- school disciplinary rules for example -- because members of some racial groups were being disproportionately affected.

Today, the war on standards is an all-out, multi-front attack. The hard left deems racist any standard that disproportionately affects a minority group. Such standards must be overthrown in the name of "equity." And the war now has widespread backing by bureaucrats, corporate executives, and, of course, the mainstream media. ###

Still, we welcome readers and commenters of all stripes.

"... I often stop reading when I see comments like 'America is now a banana republic' or 'This is all part of the Commie Purges of the cities.'"

Me too! We have our share of crackpots, as most Substacks with a decent readership do. One fellow recently (figuratively) gave me the finger and unsubscribed after I wrote a post saying that Trump was a jackass and should never again hold public office. But we have yet to see anyone take religious and pornographic shots at my wife, which has happened, ummmmmmm, elsewhere in the past. While I admire broad tolerance for comments, if I see any like that, the comment is coming down and the writer is getting permanently booted. I believe in standards and in enforcing them without a whole lot of fretting (which was one of the main reasons for my career choices).

Posted by: Bill Otis | Jan 18, 2023 6:14:55 PM

I enjoy reading your posts at Ringside, Bill, and I'd welcome your commentary/defense of acquitted conduct sentencing there. For now, I just want to make sure we both understand SCOTUS jurisprudence the same way. As I read Apprendi, Blakely, Booker and Alleyne, if and whenever any sentencing fact-finding increases any aspect of the legally prescribed sentencing range, that sentencing fact has to be found BRD. So, the constitutionally required standard of proof for any and all legally determinative aggravating facts at sentencing is BRD not preponderance. (The sentencing opinion in the sentencing of Derek Chauvin provides a good example, as there the judge expressly found four aggravating sentencing facts BRD, and found one of the prosecutors' contentions to not meet the BRD standard: https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/06/25/1010385046/read-the-derek-chauvin-sentencing-decision).

Do you think I have this account of sentencing law wrong or that it is wrong to assert that, for legally determinative sentencing fact-finding, the Supreme Court has now for almost a quarter-century held that the civil standard of proof is unconstitutional?

Of course, when fact-finding is not legally determinative (because judges have broad discretion to exercise sentencing judgment in a fully advisory system) or when facts are used in mitigation or when the fact is just a prior conviction (due to the Almendarez-Torres exception that Justice Thomas questions), sentencing systems and sentencing courts have, in the words of Chief Justice Rhenquist, "traditionally heard evidence and found facts without any prescribed burden of proof at all." Notably, in the Sentencing Reform Act, Congress did not prescribe any sentencing burden of proof. Similarly, the Federal Rules of Criminal Procedure set forth no prescribed burden of proof at sentencing, and the US Sentencing Commission has never promulgated guidelines that prescribe any sentencing burden of proof. The commentary to USSG section 6A1.3 does say that "The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case." But, intriguingly, the hate crime enhancement of USSG section 3A1.1 tells a court to apply the "beyond a reasonable doubt" standard for that enhancement.

Based on guideline commentary, federal courts generally adopt the civil standard of proof for fact-finding in the advisory guideline system. But that serves as a kind of common-law gloss due to the fact that federal lawmakers have generally failed to provide "any prescribed burden of proof at all."

Posted by: Doug B | Jan 18, 2023 9:51:58 PM

The reason I think it's a misnomer is that the term obfuscates what is going on. Let's take an example--Rae Carruth was convicted of conspiracy to commit murder, but acquitted of the actual murder. What do we do with that? What is the "acquitted conduct"? And then there's my hypo--the racial slurs would have simply been evidence of bias in selecting the victim, but if the jury believed that the slurs were incidental to the actual robbery/rape, then the conduct really wasn't "acquitted"--it just wasn't enough to prove motive.

So I think that we need to be very careful in throwing around ideas of what justice requires etc.

I part company with Bill on Trump--Trump is a selfish jackass, but what was done to him (i.e., his voters) was horrendous.

Posted by: federalist | Jan 19, 2023 8:55:37 AM

https://www.powerlineblog.com/archives/2023/01/the-chauvin-appeal-hearing.php

Regarding the Chauvin hearing. Readers may find the perspective interesting. Chauvin, in my opinion, is guilty as sin. That does not mean that you toss out rules regarding pre-trial publicity or juror bias.

Posted by: federalist | Jan 19, 2023 9:00:46 AM

I do, however, acknowledge that there is an issue here . . . . I just don't know what to do about it. I do think that "acquitted conduct" is a highly tendentious way to encapsulate the issue.

Posted by: federalist | Jan 19, 2023 9:13:40 AM

Your point seems to be, federalist, that is is hard to precisely define "acquitted conduct" in general or in particular cases AND that it is challenging to sort through exactly how to handle it (both formally and informally) at sentencing. I agree 100%, but those concerns do not in any way make the term "acquitted conduct" a "complete misnomer" given that we are talking about whether and how a sentencing authority can consider a defendant's "conduct" that is clearly connected to an "acquittal" by a criminal jury.

If you have a better label (or "nomer") for describing the debate over the sentencing treatment of a defendant's "conduct" that is clearly connected to an "acquittal" by a criminal jury, I am eager to hear it. But unless and until you provide a better label, I will keep using "acquitted conduct," while sharing your view that defining what conduct properly "fits" within this term and defining how sentencing law should treat that conduct is conceptually and functionally challenging. (And, of course, the same is true for so-called "relevant conduct" and "uncharged conduct" and even "offense conduct" and "crime of conviction" and "criminal prosecution" and "punishments" so on and so on).

Posted by: Doug B. | Jan 19, 2023 9:56:11 AM

"verdict implicated conduct" would be my term. "Complete misnomer" may have been a bit over the top, but I think that the term is being used to obfuscate the complexity and is being used to unfairly impugn sentences (in many cases).

I'd still like to know how Apprendi dictates a certain result with respect to "verdict implicated conduct"

Posted by: federalist | Jan 19, 2023 10:18:02 AM

And then we have this:

https://nypost.com/2023/01/18/doj-boosts-biden-but-tarnishes-itself-by-letting-his-own-lawyers-search-for-classified-docs/

Isn't it nice to see the Justice Department hooking up Joe "Take Showers with Daughter" Biden. Bill, no matter what Trump did/does, he's a saint compared to the current occupant of the WH.

Posted by: federalist | Jan 19, 2023 10:24:24 AM

Doesn't EVERY post-trial sentence include "verdict implicated conduct" even when there was no acquittal, federalist? In the Holmes trial, there were some hung jury counts, but I am not sure there were outright acquittals. Moreover, even if there are just convictions, the USSG requires judges to sort through "relevant conduct" which is defined in reference to guilt charges and verdicts often have all sorts of issues regarding what is "implicated" that has nothing to do with any acquittal.

Acquitted conduct is a much, much, much clearer description of the chief concern here, and the USSC has recently noted that, in FY 2021, only about 1000 cases (of 50,000+ sentenced) happen after a trial AND only about 150 of those cases involved "acquitted conduct." For those who know what we are talking about, it is plan that there are not all that many cases that involve "acquitted conduct" even though many, many more surely involve "verdict implicated conduct." You seem not quite to know what you are talking about (but again seem eager to jump to conclusions and criticisms without first getting informed).

And Apprendi says that any fact used to increase a legally-binding sententencing ceiling -- and Alleyne extended this to the entire sentencing range -- has to be proven BRD to a jury (or admitted by the defendant). So Apprendi et al says acquitted conduct (and even uncharged conduct) could NOT be used to increase any sentence within a legally binding guideline system. But Booker says make the system "advisory" (which, in a sense means without enforceable legal constraints), and then acquitted and uncharged conduct can be considered at sentencing. Do you understand current law differently?

Posted by: Doug B | Jan 19, 2023 11:19:59 AM

Then call it "verdict impacted conduct"--my point is that "acquitted conduct" masks the issues, and you seem to forget that there are state convictions too. Apprendi really dealt with "what constitutes a crime" and only holds that the range of sentence fall within the scope of the jury verdict. So I am mystified by this sentence:

So Apprendi et al says acquitted conduct (and even uncharged conduct) could NOT be used to increase any sentence within a legally binding guideline system. I don't think that's true--let's say that a defendant is charged with drug possession and drug distribution. Let's say that an element of the distribution charge is X grams. Jury acquits on the distribution charge, even though evidence is submitted that defendant had X + 1 grams and is caught on tape talking about moving the weight. Let's say that possession has range of 24-27 months within legally binding system (I am oversimplifying.)--judge, without running afoul of Apprendi could take into consideration the weight in handing out a 27 month sentence. And you're mixing two different concepts (which you seem to acknowledge)--Apprendi implicates any conduct, charged uncharged, acquitted etc. So it's not really meaningful to talk about Apprendi here, unless you're making the broader point that Apprendi requires some sort of respect for an acquittal because Apprendi is all about the jury's role in determining what crime was actually committed and undercutting that due to the fact that the criminal code is prolix and that charges can be stacked unconstitutionally diminishes the jury's role.

I think I understand perfectly well. I just don't know what to do about it.

Posted by: federalist | Jan 19, 2023 12:24:43 PM

federlist: every sentencing arguably involves "verdict impacted conduct" --- however you plan to define this cryptic term --- because every sentencing system calls upon a sentencing authority to consider what conduct is sentencing relevant in light of the guilty verdict (whether achieved by jury trial conviction or plea). But only cases in which the jury acquitted on some charges do we face the the issue of "acquitted conduct." It is so obviously a more precise and accurate term here. (Perhaps you really mean everyone views acquittals as really meaningful, so describing the issue with this more accurate term makes it seem too important or too pejorative. But the term is accurate, and your reaction reinforces why I find it much more sensible to use a more accurate term rather than a more cryptic and inaccurate term).

If your doctrinal point is just that Apprendi, as currently understood, allows judges using acquitted conduct OR uncharged conduct OR "verdict impacted conduct" OR even their feelings/mood to increase a sentence within a range where the range is a matter of pure discretion and is not subject to any legal rules, that is accurate. But Apprendi held, of course, that such acquitted conduct (or uncharged etc) could not be used, in your example, to go above 27 months (that's what I mean by legally determinative aggravating facts). What we are debating --- and what we both I think see as challenging --- is whether the constitutional text and principles that produce the Apprendi/Blakely doctrine call for treating "acquitted conduct" differently. Given that the constitutional text and principles discussed in Apprendi/Blakely, as I see them, are about constitutional design, checks and balances, individual protections from a powerful state, and democratic governance, I think "acquitted conduct" can and should be treated as different in kind. Otherwise, I think Breyer's dissenting points in Apprendi and Blakely are much more potent. But if you believe in juries and our adversarial system, I see acquitted conduct meriting distinct treatment at sentencing.

Other than on matters of semantics, I think we may be on roughly the same page. But maybe not.

Posted by: Doug B | Jan 19, 2023 1:05:03 PM

To build on federalists last comment, the problem is defining the terms and when it is improper.

Take your typical child sex case. The victim (or victims) will often describe multiple events but in ways that make it impossible to charge some (or most of those events). Can a judge take into account, the fact that the sexual abuse of the child occurred multiple times over the course of several years or is the judge limited to the one incident on which the jury found the defendant guilty beyond a reasonable doubt? Does it matter that we are in a guideline scheme in which additional points are assessed for multiple acts or multiple victims? Is the rule different, if the assessment is a "character of the defendant" departure from the sentence recommended by the guidelines.

And even in your garden variety offense, there are lots of issues regarding any court-created constitutional rule against the use of acquitted conduct. Is the rule different in an "acquit first" state (in which the jury had to find not guilty of the charged offense before considering the lesser) vs. in a non-acquit first state in which the jury can opt in its discretion to only find the defendant guilty of the lesser even if the evidence supported the charged offense). Does it matter if we are in a guideline state, where the acquitted conduct bumps up the suggested sentence, or a non-guideline state where the judge has no guidance on the appropriate sentence within the sentencing range. Does it matter if we are a state in which there is jury sentencing (in which, in the absence of a specific instruction, the jury can decide whether it wants to consider the evidence supporting the charge on which they acquitted).

There are a lot of these little questions that need to be answered before the Supreme Court creates any rule regarding the use of acquitted conduct or uncharged conduct in sentencing procedures.

Posted by: tmm | Jan 19, 2023 1:15:50 PM

We probably are on roughly the same page. But "acquitted conduct" is a misnomer as convincingly demonstrated by my hypo. And it's inflammatory because it suggests that someone is being punished for something that he is legally not guilty of.

Breyer's dissent in Apprendi is a joke, to put it mildly. And the issue is not whether I "believe" in the jury system, but whether the Constitution has a jury trial right. It does; which means that ALL elements that subject a person to the max punishment have to be submitted to a jury (subject to AT). Else, the judge is in the province of a jury. If burglary has an "at night" element, the jury gotta find that.

Posted by: federalist | Jan 19, 2023 1:32:04 PM

Doug --

Fair enough question, which I will answer as time permits. The short answer is this: The law requires proof BRD when the sentence is outside the statutory range for the offense of conviction. But in layman's terms, that means when the judge has effectively convicted the defendant of a more aggravated offense than the one for which he was indicted. No one disagrees that, when the defendant is CONVICTED OF A CRIME, however that conviction comeds about, the standard has to be BRD. I agree that Apprendi, Booker, etc. require that.

But such sentences are very, very rare given the millions of convictions and sentencings every year, including (mostly) for misdemeanors. In the huge majority of cases -- the ones in which the sentence is within the statutory range -- it has been accepted for decades, and is accepted now, that the burden of proof at sentencing is preponderance.

Posted by: Bill Otis | Jan 19, 2023 1:52:18 PM

Your hypo, federalist, seems to be an example of a judge increasing a sentence on the basis of "acquitted conduct" (unless you are saying this conduct was not actually "acquitted" because of the X+1, but then we are debating what should qualify as "acquitted conduct"). Your hypo defendant was acquitted and the underlying conduct, as I understand the hypo, was the basis for an increase in his sentence. That makes it "acquitted conduct" sentencing which may or may not be legal depending on how the sentencing system is structured -- and that's the point: we are debating what the constitutional/legal rules should be for "acquitted conduct" both within range and elsewhere. Before Apprendi/Blakely, acquitted conduct could and would be used to increase the binding legal guidelines range (which is what was at issue in Watts). What was approved in Watts was rejected in Blakely/Booker, and it is not at all inflammatory to describe acquitted conduct as acquitted conduct unless you assume that an acquittal necessarily has a certain legal meaning at sentencing. An if you do think that, the term acquitted conduct makes clear that this is just what we are talking about/debating. Your cryptic "verdict impacted conduct" has no meaning at all and applies, however you might define it, to all sort of distinct issues that conflate rather than clarify matters here.

And, to play out your final point: under federal law, do drug offense have a "weight" element (or a "gun" element)? do fraud offenses have a "loss" element? How do we decide this -- text? formalities? function? what gets charged by the prosecutor? What a jury decided in a special verdict?

Posted by: Doug B | Jan 19, 2023 2:00:35 PM

I'll need to think about what I would propose. Also, the hypo I was referring to is the racial slut.

Posted by: federalist | Jan 19, 2023 2:17:02 PM

This is not that hard, federalist: if a defendant was clearly acquitted by a jury of the conduct of "uttering a racial slur" (because that conduct was a necessary element of a charge/count on which he was acquitted), then using that conduct at sentencing implicates the problem of "acquitted conduct" sentencing. But if the defendant was not acquitted by a jury of the conduct of uttering a racial slur --- maybe because there were no charges in addition to robbery or maybe because the prosecution dismiss the charge just prior to trial or maybe because there was a hung jury on a key charge --- then we no longer have an acquitted conduct issue (though we still have plenty of "verdict impacted conduct" issues).

Now, I surmise you are especially worried about cases in which there is a jury acquittal but it is unclear/debatable what should qualify as "acquitted conduct" because its debatable about what facts are essential to the verdict of acquitted (eg "hate crime" vs "uttering racial slur"). This is a problem of defining what qualifies as acquitted conduct. That is a real and complicated issue, but it does not mean "acquitted conduct" is a problematic label for these issue. And, most fundamentally, right now the clearest cases of acquitted conduct --- eg, there is no doubt the jury verdict of acquittal was on a key fact --- can be used at sentencing, and that's what I consider quite problematic in light of the constitutional text and principles that produced Apprendi and Blakely and Alleyne.

Posted by: Doug B | Jan 19, 2023 5:06:20 PM

But Doug, and I know your concern is mostly about federal cases, what about sentencing in non-acquit first states. The jury declined to find a defendant guilty of trafficking over 10 pounds of cocaine but found the defendant guilty of trafficking over 5 pounds of cocaine. Could the judge impose a sentence near the maximum for having more than 5 pounds because the evidence at trial showed that the weight was actually 20 pounds or would that constitute punishing a defendant for acquitted conduct? Technically, no juror ever voted to acquit the defendant of possessing more than 10 pounds and the instruction for possessing more than 5 pounds would still be valid if the weight was seven pounds or 50 pounds.

Posted by: tmm | Jan 19, 2023 5:36:30 PM

Good question, tmm, though this seems to me to be a variation on what is acquitted conduct. I am inclined to have a narrow definition of "acquitted conduct," but then a robust restriction on the use of such conduct at sentencing. If, as you put it, "no juror ever voted to acquit the defendant of possessing more than 10 pounds," then I do not think we have a real "acquitted conduct" issue because the defendant was not, in fact, acquitted of possessing more than 10 pounds. Of course, there are others who will be keen to expand the definition of acquitted conduct.

Posted by: Doug B. | Jan 19, 2023 6:04:06 PM

Bill, I do not want to get too pedantic, but I think Chief Justice Rhenquist's account of matters --- that sentencing judges "traditionally heard evidence and found facts without any prescribed burden of proof at all" --- is a more accurate account of the millions of sentencings that take place in the US. Indeed, the federal system, as I highlighted before, has no legally prescribed burden of proof for sentencing. Similarly, I sense informality, not formal civil findings of fact, define most misdemeanor sentencings. And here is a discussion of a Delaware Supreme Court case which was content with sentencing findings with "minimal indicia of reliability" and which rejected a claim that the standard had to be a preponderance:
https://sentencing.typepad.com/sentencing_law_and_policy/2017/12/is-due-process-satisfied-by-a-mere-minimal-indicia-of-reliability-at-sentencing-to-support-large-inc.html

That all said, I do think most judges at sentencing, if there is a disputed fact, want to conclude that the fact is more likely than not. On that basis, I would say that, within discretionary ranges, it is fair to say that functionally the burden of proof at sentencing is preponderance. But as for formal law, we have two realities (a) for legally consequetial facts at sentencing, the burden is BRD, and (b) for discretionary sentencing judgments, judges generally "hear[] evidence and [find] facts without any prescribed burden of proof at all."

Posted by: Doug B | Jan 19, 2023 6:24:49 PM

Doug --

You know that I'm a simple minded man. The way to find out what standard of proof is predominantly used at sentencing is to go to a bunch of sentencing proceedings and see for yourself. Or a second best option would be to commission a poll to simply ask judges what standard of proof they use for finding facts that affect the sentence they're going to impose. Based on my experience, which is lots, the great majority will say preponderance. The sole exception will be the rare case where they intend to impose a sentence greater than that prescribed by the statute under which the defendant was charged, in which case they are going to agree with you (and me) that BRD is required, simply because a sentence like that presupposes a CONVICTION (in effect if not in name) for a different offense. And a conviction cannot be had absent proof BRD.

Posted by: Bill Otis | Jan 20, 2023 2:26:59 AM

Doug B quotes:

This is not that hard, federalist: if a defendant was clearly acquitted by a jury of the conduct of "uttering a racial slur" (because that conduct was a necessary element of a charge/count on which he was acquitted), then using that conduct at sentencing implicates the problem of "acquitted conduct" sentencing. But if the defendant was not acquitted by a jury of the conduct of uttering a racial slur --- maybe because there were no charges in addition to robbery or maybe because the prosecution dismiss the charge just prior to trial or maybe because there was a hung jury on a key charge --- then we no longer have an acquitted conduct issue (though we still have plenty of "verdict impacted conduct" issues).

federalist, I would not call the claimed racial slur an "undisputed fact," I would call it an "acquitted fact." And I do not want any acquitted fact used to expressly increase a sentence at all.

Looks there was some movement.

Posted by: federalist | Jan 20, 2023 8:25:39 AM

Bill: I have both attended and testified at many (mostly federal) sentencings. In the vast majority, the critical offense facts driving sentencing enhancements are set forth in the plea agreement or in a PSR that does not become a matter of serious dispute. But I agree that most federal judges will say they resolve, in the post-Booker advisory system, any disputed aggravating facts (but typically not mitigating facts) by a preponderance. But that is not the standard actually prescribed by any formally enacted federal law, it is a common law gloss developed in the shadow of a various of Supreme Court precedents and a tradition in which sentencing judges "heard evidence and found facts without any prescribed burden of proof at all." Moreover, in recent jurisprudence, the Supreme Court has come to demand BRD sentencing findings in many modern state and federal cases: eg, Apprendi, Blakely, Booker merits, Cunningham, Southern Union, Allenye, Haymond.

But I am getting too pedantic in my doctrinal precision, and I do not dispute your assertion that, within discretionary ranges, the functional burden of proof used by judges at sentencing is preponderance. And it is also my understanding that you think all the cases I just listed --- Apprendi, Blakely, Booker merits, Cunningham, Southern Union, Allenye, Haymond --- were wrongly decided. Is that correct?

Posted by: Doug B | Jan 20, 2023 8:43:43 AM

federalist: I do think we've made progress. Based on your concern (and those also suggested by tmm), I will try to sometimes use the term "acquitted facts" to describe what we find most problematic here --- though members of Congress, the US Sentencing Commission and others have largely adopted the nomenclature "acquitted conduct."

Semantics aside, the fundamental issue now before SCOTUS is whether acquitted facts can and will be expressly relied upon by federal judges to enhance sentences. Bill contends, I believe, that acquitted facts are perfectly appropriate to use to enhance sentences. Indeed, I sense Bill believe that, if a judge is convinced about acquitted facts by a preponderance, that judge is duty-bound to consider those acquitted facts exactly like any other fact at sentencing (which is the current state of law under advisory guidelines). I am pleased to hear, federalist, that you share my view that current law and Bill's position is problematic.

Posted by: Doug B. | Jan 20, 2023 9:12:44 AM

For those who believe that the preponderance of the evidence standard is permissible at sentencing to find facts that are the functional equivalent of elements of a different, and more serious, crime, how do you harmonize your beliefs with the statements of Justices Thomas and Scalia on this very topic? No one has mentioned that when these district court judges are finding these facts by a preponderance of the evidence in far too many cases the 'tail is wagging the dog' of the substantive offense. How can this be right, or, stated differently, how can this be considered constitutional? Below, I have listed a few examples, correct examples I might add, of how these Justices Thomas and Scalia have discussed this problem:

Justice Scalia writing for the majority in Blakely v. Washington:

Any evaluation of Apprendi's "fairness" to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 U.S.C. §§ 841(b)(1)(A), (D),[13] based not on 312*312 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. We can conceive of no measure of fairness that would find more fault in the utterly speculative bargaining effects JUSTICE BREYER identifies than in the regime he champions. Suffice it to say that, if such a measure exists, it is not the one the Framers left us with.

Justices Scalia and Thomas concurring in Ring v. Arizona:

I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives -- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane -- must be found by the jury beyond a reasonable doubt.

Justice Thomas dissenting in United States v. Booker:

The commentary to § 6A1.3 states that "[t]he Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case." The Court's holding today corrects this mistaken belief. The Fifth Amendment requires proof beyond a reasonable doubt, not by a preponderance of the evidence, of any fact that increases the sentence beyond what could have been lawfully imposed on the basis of facts found by the jury or admitted by the defendant.

Justices Scalia and Thomas concurring in Rita v. United States:

Second, consider the common case in which the district court imposes a sentence within an advisory Guidelines range that has been substantially enhanced by certain judge-found facts. For example, the base offense level for robbery under the Guidelines is 20, United States Sentencing Commission, Guidelines Manual § 2B3.1(a) (Nov.2006), which, if the defendant has a criminal history of I, corresponds to an advisory range of 33-41 months, id., ch. 5, pt. A, Sentencing Table. If, however, a judge finds that a firearm was discharged, that a victim incurred serious bodily injury, and that more than $5 million was stolen, then the base level jumps by 18, §§ 2B3.1(b)(2), (3), (7), producing an advisory range of 235-293 months, id., ch. 5, pt. A, Sentencing Table. When a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence. His failure to find them would render the 293-month sentence unlawful. That is evident because, were the district judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentence would surely be reversed as unreasonably excessive.

These hypotheticals are stylized ways of illustrating the basic problem with a system in which district courts lack full discretion to sentence within the statutory range. Under such a system, for every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant. Every sentence higher than that is legally authorized only by some judge-found fact, in violation of the Sixth Amendment. Appellate courts' excessiveness review will explicitly or implicitly accept those judge-found facts as justifying sentences that would otherwise be unlawful. The only difference between this system and the pre-Booker mandatory Guidelines is that the maximum sentence based on the jury verdict or guilty plea was specified under the latter but must be established by appellate courts, in case-by-case fashion, under the former. This is, if anything, an additional constitutional disease, not a constitutional cure.

Posted by: Eric A. Hicks | Jan 20, 2023 9:28:28 AM

I don't think that judges are required to turn a blind eye to what is in front of their faces. But I also think that jury verdicts are to be respected. I think that the answer is ultimately requiring judges to articulate why in a detailed manner. It's not a perfect solution, but there is no way the Framers could have anticipated the prolixity of our criminal law statutes and modern criminal behavior.

Posted by: federalist | Jan 20, 2023 9:29:13 AM

Erik A. Hicks --

"For those who believe that the preponderance of the evidence standard is permissible at sentencing to find facts that are the functional equivalent of elements of a different, and more serious, crime, how do you harmonize your beliefs with the statements of Justices Thomas and Scalia on this very topic?"

By looking at their votes in the case that actually decided the acquitted conduct issue, that being Watts.

There were only two dissents in Watts, Stevens and Kennedy. Thomas joined in the Court's opinion without setting forth any differences from it, either in a concurrence or a partial dissent. Scalia concurred in an opinion that was STRONGER on the pro-prosecution side than the majority.

Do you know the law better than the hundreds of US district judges out there right now and who, having read Watts (which you don't mention) and Apprendi and Booker and Blakely and Rita and Ring, routinely use the preponderance standard at sentencing? Maybe you do, but I have my doubts.

P.S. The one thing that's not getting mentioned here is that an acquittal is NOT a jury finding that the defendant didn't do it. Acquittals get entered for many reasons having zip to do with substance, e.g., the jury thinks the prosecutor is a jerk who overstepped, thinks the crime itself represents Congress overreaching, thinks the chief defense witness had nice legs, or has received a, ummmmmmmmm, home visit from some of the defendant's fellow gang members.

Although like Doug I now have a job teaching law (Georgetown), I got my experience in the real world with real litigation.

Posted by: Bill Otis | Jan 20, 2023 3:50:10 PM

Sincere question, Bill: Do you think some jury guilty verdicts "get entered for many reasons having zip to do with substance," or is it only some jury acquittals? And if you think that sometimes this does happen in the case on convictions, do you support judges having broad sentencing authority to refuse to give respect to jury convictions?

Posted by: Doug B | Jan 20, 2023 7:38:14 PM

Doug --

"Sincere question, Bill: Do you think some jury guilty verdicts "get entered for many reasons having zip to do with substance," or is it only some jury acquittals?"

Almost all acquittals. Indeed, there's a libertarian school that actively pushes for non-evidence related acquittals, to wit, jury nullification. You've posted about this often.

"And if you think that sometimes this does happen in the case on convictions, do you support judges having broad sentencing authority to refuse to give respect to jury convictions?"

They already have something a good deal more powerful than merely playing with the sentence, to wit, Rule 29 to tank the jury's conviction altogether.

Posted by: Bill Otis | Jan 20, 2023 7:49:10 PM

You did not answer my question, Bill. You seem to suggest that you think at least a few jury convictions have “zip to do with substance.” Given that belief, do you think federal judges should have authority at sentencing to ignore a guilty verdict even if not thinking he must overturn the verdict? You seem to suggest the possibility of what you might call a “suspect jury acquittal” is one justification for authorizing judges to ignore acquittals at sentencing. If that is your thinking, it would be logical to be consistent and also allow a judge to respond to any “suspect jury conviction” by ignoring that conviction at sentencing.

Fundamentally, I see the issue in terms of whether and how judges at sentencing must respect the work of juries. If jury acquittals are not to be shown respect at sentencing, why should jury convictions?

Posted by: Doug B. | Jan 20, 2023 10:16:12 PM

Doug --

"You seem to suggest that you think at least a few jury convictions have “zip to do with substance.” Given that belief, do you think federal judges should have authority at sentencing to ignore a guilty verdict even if not thinking he must overturn the verdict?"

I have no idea of how a sentencing judge would "ignore" a guilty verdict (that survives a Rule 29 motion) at sentencing. If you're sentencing at all following a guilty verdict that stands, you can hardly be ignoring it.

To whatever quite limited extent I can guess at what you mean, no, I would not give judges that authority, because non-evidence based convictions are too rare to justify such a bizarre rule. That isn't true of non-evidence based acquittals.

"You seem to suggest the possibility of what you might call a “suspect jury acquittal” is one justification for authorizing judges to ignore acquittals at sentencing. If that is your thinking, it would be logical to be consistent and also allow a judge to respond to any “suspect jury conviction” by ignoring that conviction at sentencing."

My thinking is easy to follow, as is the Watts case that was decided by a lopsided vote. An acquittal does not EVER necessarily mean that the jury found the defendant didn't do it. At most, it means that the jury was unable unanimously to conclude that the proof that he did it met the exacting BRD standard. An acquittal could mean other things too, some of them not having to do with the evidence. This is the reason sleazy defense lawyers call the defendant's weeping mother to the stand even though she knows nothing about the case. It's a pitch for a sympathy acquittal, pure and simple.

"Fundamentally, I see the issue in terms of whether and how judges at sentencing must respect the work of juries. If jury acquittals are not to be shown respect at sentencing, why should jury convictions?"

As federalist has shown using a slightly different angle, you're being too vague here. What does "respect" mean? Adopt whole cloth? Adopt partially? How much? And what exactly is "the work of juries"? As noted, an acquittal is not jury "work" meaning the jury doesn't believe the defendant did what he was accused of. It could mean something entirely different, or it could mean that it believes he DID INDEED DO what he was accused of, but not so certainly that the jury unanimously can say so BRD. The phrase "work of juries" simply has no specific meaning adequate to justify the overturn-Watts rule you're pushing for.

Posted by: Bill Otis | Jan 20, 2023 11:15:25 PM

Bill Otis,

There was a reason why I never mentioned either Watts nor Witte in my prior post. Yes, those cases upheld the use of acquitted conduct under the Double Jeopardy Clause (Watts) and relied on the language of 18 U.S.C. 3661 and the Court's prior holding in Watts to reaffirm this principle (Witte). But neither of those cases involved the discussion that we were having---whether the use of acquitted conduct violates the Sixth Amendment's right to a jury trial.

What you seem to be implying is that because Justices Thomas and Scalia were both among the majority in those cases, their views can never be modified. But we've seen Justices change their view on a topic before. The most recent examples that I can think of are Justice Thomas's change of heart in Shepard where he commented that he believed that Almendarez-Torres (in which he sided with the plurality) was wrongly decided and Justice Breyer's change of heart in Alleyne after he had sided with the plurality in Harris.

Not once have I implied that I know the law better than judges. However, I won't deify their beliefs either. Judges are humans after all and just because they have unanimity on a given viewpoint does not make it right. Just think, there was unanimity over the 'use' prong of 18 U.S.C. 924(c) before it was narrowed by the Supreme Court in Bailey and later narrowed again in Watson. There was a near consensus that whether a firearm constituted a machine gun under 924(c) was a sentencing factor as opposed to an element before it was corrected in O'Brien. There was unanimity that the residual clause of 924(e) was constitutional before it was stricken in Johnson II. There was broad agreement among the courts regarding the reach of 924(e) as it relates to the definition of a violent felony before it was narrowed in Begay, Chambers, Johnson I and Borden (to cite a few). There was a near unanimous agreement as to the interpretation of 922(g)(1) before that was upended by Rehaif. The same can be said about the reach of what conduct should be criminalized under 18 U.S.C. 1343 and 1346 before that was narrowed in Skilling and Black. This same type of universal understanding existed regarding what jury instructions were acceptable under 1951 before the Supreme Court corrected the misunderstanding in McDonnell.

So, again, I do not profess to know the law better than judges. But what you are suggesting with your view regarding g an acquittal is something that I have a different opinion on. That's all. If the presumption of innocence is to be respected, I don't believe that the Sixth and Fifth Amendments permit a court to consider all of a defendant's transgressions in a criminal proceeding at sentencing just because the jury has convicted him of some criminal act and evidence has come in during the trial that indicates that he 'may' have committed another crime that the jury never found he committed or that he was never charged. If we are going down that path, then the presumption of innocence will soon be non-existent.

Having said this, as I have said before, nothing would prevent the judge from considering these acts in deciding that it will sentence the defendant to the very top of the guideline range that is consistent with the jury's verdict. Indeed, that can make the different between a defendant spending, say, 15 years behind bars as opposed to 19.5 or 20 years. Yet, when you have the judge consider these facts and then impose additional decades, I don't see how the constitution allows this. I could be wrong. But,it's my opinion and I think I am entitled to that---even if I am not a professor.

Posted by: Eric A. Hicks | Jan 21, 2023 10:34:34 AM

Quoting Justice Scalia citing the founders speaking for the Court in Blakely: "the right of jury trial ... 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."

Put simply, Bill, you are statist seemingly eager to treat a jury acquittal (but only acquittal) as a mere procedural formality by giving judges broad power to punish defendants based on judicial views contrary to jury acquittals. In contrast, and highlighting your statist nature, you do not want judges to have any power not to punish defendants after stacked jury convictions. (I am thinking of cases like the Weldon Angelos case where prosecutors stack counts seeking a plea and thereafter a jury returns a mixed verdict without knowing the sentences connected to each count. In your world, judges are to have broad authority (and even an obligation) to increase punishment based on acquitted facts, but no authority to limit punishment on convicted facts.)

Tellingly, you ignore many thousands of established wrongful jury convictions when calling non-evidence based convictions "too rare to justify such a bizarre rule." Even more telling is that you think it "bizarre" to imagine a judge questioning at sentencing any stacked jury convictions while defending a federal sentencing system that requires a judge to disregard at sentencing every jury acquittal.

Other than the Watts ruling can you cite any American authority --- textualist or originalist or living/"common good" constitutional authority --- for the notion that state bureacrats should have broad authority to punish based on "acquitted facts"? I have suggested you make your full case for acquitted conduct at your substack because I would be eager to see how other conservatives respond to giving federal judges an authority and obligation to punish based on acquitted facts. Federalist seems troubled by the idea (not sure about Tarls), but I generally believe that the framers and any anti-statist fans of jury trials --- or those who see the importance of multiple check on the state's power to punish individuals --- would be inclined to think the rules ought to run opposite of what you argue.

Posted by: Doug B | Jan 21, 2023 10:35:27 AM

Bill Otis, The comments below are those of Justice Kavanaugh in his concurrence in Bell:

"I share Judge Millett's overarching concern about the use of acquitted conduct at sentencing, as I have written before. See, e.g., United States v. Settles, 530 F.3d 920, 923-24 (D.C.Cir.2008); see also United States v. Henry, 472 F.3d 910, 918-22 (D.C.Cir.2007) (Kavanaugh, J., concurring). Of course, resolving that concern as a constitutional matter would likely require a significant revamp of criminal sentencing jurisprudence — a revamp that the Supreme Court lurched toward in cases such as Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but backed away from in its remedial opinion in Booker.

Taken to its logical conclusion, the Blakely approach would require a jury to find beyond a reasonable doubt the conduct used to set or increase a defendant's sentence, at least in structured or guided-discretion sentencing regimes. A judge could not rely on acquitted conduct to increase a sentence, even if the judge found the conduct proved by a preponderance of the evidence.

A judge likewise could not rely on uncharged conduct to increase a sentence, even if the judge found the conduct proved by a preponderance of the evidence.At least as a matter of policy, if not also as a matter of constitutional law, I would have little problem with a new federal sentencing regime along those lines. Allowing 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 to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don't you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence? Cf. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)."

Do these statements imply that Justice Kavanaugh is wrong because his viewpoint on this matter does not align the "majority" of district court and appellate court judges?

Posted by: Eric A. Hicks | Jan 21, 2023 11:47:15 AM

Bill Otis,

The comments below are those of Judge William Young in Massachusetts in Green:

"[t]he concept of "real offense" sentencing as practiced under the Guidelines not only affects where—within the permissible range—an offender ought be sentenced, it frequently adjusts that range upward considerably. No state system— not one—has adopted this approach."

Your approach to the issue of acquitted conduct is within the scope of 'real offense' sentencing.

Mr.Otis, can you name for me a State system that authorizes this type of "real conduct" sentencing? I am curious because I have not found any. That, of course, does not mean that they do not exist.

Posted by: Eric A. Hicks | Jan 21, 2023 11:49:16 AM

Eric A. Hicks --

"Your approach to the issue of acquitted conduct is within the scope of 'real offense' sentencing."

You bet, which aligns me with that right wing nut, Justice Breyer.

"Mr.Otis, can you name for me a State system that authorizes this type of "real conduct" sentencing? I am curious because I have not found any. That, of course, does not mean that they do not exist."

Don't know about state systems; I worked solely for the feds.

P.S. Your approach earlier in this thread that Justices can change their minds, while of course true, can support any result at all, and therefore supports none at all. It has all the persuasive punch of supporters of Dobbs saying to its opponents, "Well, look, the Justices who decided Roe could have changed their minds."

Posted by: Bill Otis | Jan 21, 2023 11:29:33 PM

Eric, my state (Missouri) never adopted a formal guideline system, and Blaekly probably killed any momentum toward such a system. However, our cases make clear that the judge (or a jury since we have jury sentencing) can consider uncharged and acquitted conduct at sentencing under a preponderance of the evidence standard.

Posted by: tmm | Jan 23, 2023 10:51:21 AM

tmm

Thanks for that useful tidbit of information. I wonder, if you know, what are the sentencing ranges / statutory ranges that the court has to consider? It is material in my view. I say this because of my viewpoint that if a court determines that it is appropriate to sentence based on uncharged or acquitted conduct, if the range is, say, 188-235 months---similar to the guidelines, then the court can use that conduct as a basis to sentence the defendant at the top of the range, i.e., 235 months. The use of the uncharged or acquitted conduct would have the effect of increasing the defendant's sentence by approximately 4 years in this scenario.

My opposition is where you have these statutory ranges such as10- life, 5-40 or 0-20, which is the case under 21 U.S..C. 841(b), and the court uses the acquitted or uncharged conduct as a basis to go from, say, 2-3 years, up to the maximum of 20 years (or thereabouts) or where the court uses the conduct to enhance the defendant from 5 years (under section 841(b)(1)(C)) to 30-40 years, or from 10 years up too life, all of which I have seen occur.

But thanks again for this information.

Posted by: Eric A. Hicks | Jan 23, 2023 12:35:05 PM

tmm and Eric A. Hicks --

Your two posts together give me an idea. In a jury-sentencing state, let the jury decide for itself exactly what its acquittal meant and how much weight it should or should not carry in their sentencing decision.

Posted by: Bill Otis | Jan 23, 2023 3:13:43 PM

Doug --

"Put simply, Bill, you are statist seemingly eager to treat a jury acquittal (but only acquittal) as a mere procedural formality by giving judges broad power to punish defendants based on judicial views contrary to jury acquittals."

Quite a load of baloney packed into just one sentence.

-- I"M the statist??? Who gets a paycheck signed by a private employer and who gets a (big) paycheck signed by THE STATE?? Specifically the state of Ohio.

-- There you go again fantasizing what I "seemingly" think. You have no such portfolio or ability, so stop. If you want to say what I think, quote me. Period. And you use your fantasizing to just glide past the two questions that actually make a difference in this discussion, to wit, what exactly does an acquittal mean in the context of any given count in any given case, and what is the standard of proof at sentencing.

-- It's not "judicial views," a phrase that sleazily implies merely the judge's bias. It is, instead, the judge's conclusion about what the preponderance of the evidence establishes -- the same conclusion a California court drew about OJ Simpson's responsibility for paying millions to the estates of the people he killed notwithstanding his acquittal of murdering them. I mean, he was acquitted, right? So that means he didn't do it, right?

OJ was innocent and space aliens are among us!!! You gotta love the defense perspective.

Posted by: Bill Otis | Jan 23, 2023 3:35:14 PM

Eric, in Missouri, we have very broad statutory ranges 10-30 or life on Class A felonies, five to fifteen years on Class B felonies, three to ten on class C felonies, up to 7 on a class D felony, and up to 4 on a class E. No guidelines and judges and juries can do anything within the sentencing range that they deem appropriate.

To take two of our statutes for example, our robbery statute has as a potential element that the robber displayed what appeared to be a firearm but we have an add-on offense for using an actual weapon. If the jury finds beyond a reasonable doubt that it looked like a firearm but has a residual doubt that it was actually a gun (because the defendant got rid of it after the offense), they could theoretically return a not guilty on the add-on charge but take into account the fact that it was pretty sure that it was a gun to bump it up to twenty years rather than say fourteen years. Of course, we do not know what the jury was thinking unless we talk to them after the verdict. Or the judge could do the same thing without making any express statement as to the reason. Or either could take into account, a pending separate case against the defendant (assuming that the prosecutors were able to convince the judge that there was enough evidence supporting the other case to make it admissible in the penalty phase).

Posted by: tmm | Jan 23, 2023 4:35:13 PM

OJ was acquitted, Bill, and notably the Nevada judge went out of her way when sentencing him on his subsequent armed robbery conviction to say she was not considering his prior acquittal. From the NYT account:

"In remarks leading up to the sentencing, Judge Glass repeatedly insisted that neither she nor the jury had been influenced by the 1995 trial in which a Los Angeles jury acquitted Mr. Simpson in the murders of his former wife Nicole Brown Simpson, and her friend Ronald L. Goldman. 'That doesn’t matter to me; I want that to be perfectly clear to everyone,' she said."

Of course, in the OJ case we did get a JURY reaching a CIVIL verdict in the tort suit, but that just makes the point that our legal system traditionally uses quite different standards of proof for criminal liability/punishment and civil damages. You want the civil standard to apply for state punishment because you want the state to have more power to punish even when a jury has decided to acquit on criminal charges. That's your policy preference, but you are still yet to provide any any American authority --- textualist or originalist or living/"common good" constitutional authority --- for the notion that state bureaucrats should have broad authority to punish based on "acquitted facts."

I call you a statist because, though your advocacy for state power to punish severely even in the face of jury acquittals, you support "institutions and political practices in which executive authority gathers increasing levels and varieties of power into its hands." https://pages.uoregon.edu/kimball/sttism.htm

Posted by: Doug B | Jan 23, 2023 5:29:01 PM

Doug --

You want to put reality aside (the reality that OJ killed two people as you and every other sane person knows). I, by contrast, want to put labeling aside. A jury acquitted OJ of murder, you bet. Why then, under your reasoning (not labeling, reasoning) shouldn't that preclude any later jury in the same jurisdiction from imposing the incredibly burdensome (some might say punitive) legal mandate that he pay out several million dollars because he did the murdering? Doesn't that judgment grossly disrespect -- indeed flatly contradict -- the first jury's work?

Posted by: Bill Otis | Jan 23, 2023 6:04:20 PM

Mr.Otis,

I understand your point about a system where the jury would decide what it meant by its verdict.

This reminds me of an occurrence years ago. You may recall after the Supreme Court's decision in Blakely, the prosecution (in some cases) began requesting that the indictment include the guideline sentencing factors as, in essence, parts of the offense and the jury would have to make special findings on these facts for purposes of sentencing.

Some judges agreed and others demurred. The interesting part of the anti-prong of judges was their argument that to include the sentencing factors in the indictment would be delegating to the Sentencing Commission the job of the legislative branch of creating new aggravated crimes.

Do you believe that giving the jury the kind pop power you propose would invite this type of constitutional dilemma?

Posted by: Eric A. Hicks | Jan 23, 2023 6:25:24 PM

Eric A. Hicks --

Booker, the progeny in many ways of Blakely, made the Commission's Guidelines "advisory only," thus rendering moot the possible constitutional problem you describe. Legislation isn't advisory. Since the Guidelines are, no one can now mistake the Commission for Congress (if they ever could). Indeed, the Commission is now so watered down and so divorced from its congressionally-intended original function that the question has been raised whether it's worth keeping at all, https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/1IzxpHMqv9UKPPDE9p7H1Z5fclsJq9kK733I8dfl.pdf

Posted by: Bill Otis | Jan 23, 2023 9:41:04 PM

federalist --

"I part company with Bill on Trump--Trump is a selfish jackass, but what was done to him (i.e., his voters) was horrendous."

Your point of view got a considerable and shocking boost today. It turns out that one of the lead FBI agents in the effort to portray Trump as a Russian stooge was himself a Russian stooge. For those of us who had faith in the FBI, this is a bitter pill. But bitter or not, Garland is going to have to appoint a Special Counsel for this. The stench is appalling.

https://www.dailymail.co.uk/news/article-11667515/Ex-FBI-agent-arrested-links-Russian-oligarch.html

Posted by: Bill Otis | Jan 23, 2023 9:55:47 PM

Bill, you are smart enough to know the constitutional (and policy) arguments for different procedures and standards for state-driven criminal law and litigant-driven tort law. And that's my main point: the framers and and long-standing common law traditions provide for BRD as the due-process-required burden of proof for adjudicating criminal guilt/punishment to be imposed by the state and preponderance as the proof standard for civil matters in the resolution of disputes between two private parties. Having a civil jury make findings in a civil case on that lower standard is fundamentally different than having a judge impose decades of state punishment based on civil proof standards (which you, of course, know full well).

I surmise you are focused on OJ to try to keep dodging the central question that I will ask once again: can you provide any American authority --- textualist or originalist or living/"common good" constitutional authority --- for the notion that state bureaucrats should have broad authority to punish based on "acquitted facts" using a civil burden of proof standard?

I surmise you think imposing state punishment based on "acquitted facts" using a civil proof standard makes for good policy. And that is why I call you a statist. And the fact you do not even care to engage with textualism or originalist ideas here is why I do not think you care about textualism or originalism except when it provides cover for imposing your policy preferences into law. Since you often like to preach about the importance of lawyers being honest, can you be honest on this matter at least by saying you are unaware of any textualist or originalist arguments to support your views?

Posted by: Doug B. | Jan 24, 2023 1:10:59 AM

Doug --

1. Still into labels while walking past substance. What a surprise! But I won't go down that arid path. OJ killed two people and walked, which is a travesty and an injustice. It bothers me. Does it bother you? I would like to think so, but not that I can see from what you write here. Murder, schmurder. Hey look, stuff happens.

2. The OJ verdict proves what you already know, that an acquittal doesn't mean the defendant didn't do it. OJ is an especially flagrant case, but the principle is known and undisputed by serious people.

3. Nonetheless, you stay on offense, as if the legal deficiency here lies with me rather than with your defendant friend who lost all three judges on a sympathetic panel.

4. Of course those judges cited and followed the governing law, Watts -- a case your amicus cert brief refers to only once, and not for its holding (which you omit to mention at all), but only to reference the sole merits dissent by a single Justice. If you had a case on your side, you would have trotted it out. But you have none, which is (1) why you're having trouble getting a cert grant, and (2) why your authority, such as it is, consists of statements here and there from individual jurists rather than opinions.

5. You fully know, and I think you admitted earlier on this thread, that preponderance is overwhelmingly the standard used in sentencing, with some (rare) exceptions. It's been that way from the Founding, which you (sometimes) claim to revere. Yet you huff and puff to portray ME as the "where's-your-honesty" radical who wants to change the law.

Baloney. It's YOU who wants to change it (which is why you're helping out with this cert petition, which is hardly pitching to keep the law where it is).

6. If the jury found that your bloody pal McClinton did not commit the murder, then I would agree that he can't be sentenced for the murder, you bet. But an acquittal IS NOT SUCH A FINDING, as you full well know but refuse to admit. The real offense system of sentencing enacted by Congress in the SRA and preserved by the Court in Booker carried forward the preponderance standard that existed in the law before then and, as the Seventh Circuit correctly held, exists there now.

Posted by: Bill Otis | Jan 24, 2023 3:21:16 AM

Bill, there are certainly wrongful jury acquittals and wrongful jury convictions and all of those individual injustices concern me. But even more concerning are rules and attitudes that we ought to jettison our commitment to juries as a form of democratic input in our criminal justice system because of a few wrongful jury determinations. (It's somewhat like the threat posed to election-based democracy if/when one finds a few clear examples of voter fraud and then uses those examples to champion rules and attitudes that embrace statist government structures over democratic ones.)

The cases on the side of requiring proof BRD for criminal justice adjudications are legion. Winship provides this accounting, among others:

-----
The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The "demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula 'beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt." C. McCormick, Evidence § 321, pp. 681-682 (1954); see also J. Wigmore, Evidence § 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable doubt standard in common law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does "reflect a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145, 155 (1968).

Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Wilson v. United States, 232 U.S. 563, 569-570 (1914); Brinegar v. United States, 338 U.S. 160, 174 (1949); Leland v. Oregon, 343 U.S. 790, 795 (1952); Holland v. United States, 348 U.S. 121, 138 (1954); Speiser v. Randall, 357 U.S. 513, 525-526 (1958).

---

You now claim here, Bill, that "preponderance is overwhelmingly the standard used in sentencing, with some (rare) exceptions. It's been that way from the Founding...." I have asked you repeatedly, and will ask you here again: can you provide any American authority for this claim about sentencing practice "from the Founding"?

Your claim about sentencing practice at the Founding is not quite the same as an assertion that acquitted facts/conduct can be used at sentencing as the legal basis for enhanced imprisonment. But you are now making a related claim about the "overwhelming" practice since the Founding and I am eager to review your support this this claim. Do you have any? There were no such authorities cited in Watts, and so I am eager to see the foundation for your claims about practice at the Founding.

I can cite you dozens of cases from before the 20th century on the requirement in criminal cases of proof BRD. I am sincerely interested if you have a single case or any legal source in support of your claim that preponderance has been used to legally justify imposing terms of imprisonment "from the Founding." Do you?

Posted by: Doug B. | Jan 24, 2023 9:19:13 AM

Doug --

If proof BRD is already the long-embraced standard for sentencing, why are you filing this cert petition at all? Because all those hundreds of dummy district judges and circuit judges haven't caught up yet?

C'mon.

P.S. Winship is not a sentencing case. Watts is.

Posted by: Bill Otis | Jan 24, 2023 1:51:22 PM

I accept the statement of CJ Rehnquist/SCOTUS in McMillan (1986): "Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." However, as the court in Apprendi (2000) explained: "Since Winship, we have made clear beyond peradventure that Winship's due process and associated jury protections extend, to some degree, to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence." Notably, McMillan has been reversed as inconsistent with constitutional text, history and tradition, and I think Watts (which relied heavily on McMillan) ought also to be reversed. I think that in part because of my understanding of this historical/originalist record (which Justice Thomas among others has developed at length in his Apprendi and Alleyne rulings). But it is true that we still have Watts on the books, and that creates our need to ask SCOTUS to overturn this suspect precedent.

Critically, you have asserted that "preponderance is overwhelmingly the standard used in sentencing, with some (rare) exceptions. It's been that way from the Founding...." I have asked you repeatedly, and will ask you here again: can you provide any American authority for this claim about sentencing practice "from the Founding"? You are good at dodging the question, so I have to keep asking it, and I will keep asking until I have an understanding of why you are making an assertion for which there seems to be absolutely no historical/originalist support.

I am sincerely interested if you have a single case or any legal source whatsoever in support of your claim that preponderance has been used as a proof standard to legally justify imposing increased punishment "from the Founding." Do you?

Posted by: Doug B. | Jan 24, 2023 6:30:41 PM

Doug --

I won't even go through the numerous questions I've asked of you on this thread that you've ignored. That's your right, but when you exercise it, I get to exercise the equivalent right and am doing so. (Not that you'd accept any case I'd cite, which we both already know you won't, meaning that there's no use in my starting down your road of perpetual and predetermined disapproval in any event).

The only reason you filed this cert petition was TO CHANGE EXISTING LAW, which the lower court followed. Otherwise, the whole exercise would be pointless and you'd be wasting your time. Still, your pedantic and tiresome treatment of me is better than your run-and-hide treatment of Watts in your brief. I doubt that just walking past the most important Supreme Court case on the question in favor of the ravings of fringe leftists like Mike Bright, Rosemary Barkett and Nancy Gertner is going to impress SCOTUS as serious scholarship.

Posted by: Bill Otis | Jan 24, 2023 11:48:42 PM

Bill, for starters, I did not file a "cert petition," I filed an amicus in support of cert. Second, I just would like to see what evidence you believe supports your claims even if you fear I might not "accept" this evidence. I sincerely just want to know what you think supports your claim about sentencing practice "from the Founding." So I will ask you here yet again: can you provide any American authority -- case or article or any other legal source -- for your claims about sentencing practice "from the Founding"?

I think you often praise originalism, but I sense you are a criminal justice statist eager to disregard originalism whenever a fair reading of the historical record might limit state power to punish. But maybe you are aware of all sort of originalist sources that I am not familiar with. I know I was not familiar with all the sources that Justice Thomas cited in cases like Apprendi and Alleyne. Therefore, I will keep asking to see any source that provide any foundation for your claims and practice "from the Founding."

If you are unwilling or unable to cite a single case or any legal source to support your claims, I will continue to assume that you are really just stating your policy preferences rather than providing a true originalist accounting of matters (even though you seem to be claiming that you are). And if you want to practice what you like to preach about honest, feel free to honestly answer that you do not have at the ready any single case or any legal source to support your claims.

Posted by: Doug B. | Jan 25, 2023 2:16:51 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB