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March 8, 2023
DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses
A few weeks ago, the Justice Department testified to the US Sentencing Commission that is was generally against efforts to amend the guidelines to significantly curtail the consideration of acquitted conduct at federal sentencing (hearing here, written testimony here). This week, that testimony has generated some notable responses.
Specifically, this new Reuters commentary by Hassan Kanu, headlined "U.S. Justice Dept takes a hard line on sentencing reform," laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration." And, perhaps even more notable, the lawyers representing Daytona McClinton in one of the acquitted conduct cases pending before SCOTUS filed this short new supplemental brief with the Court. (Regular readers know that last year I filed an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.) Here are some snippets from the new supplemental brief:
In its brief in opposition, the government argued that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In January 2023, the Sentencing Commission introduced preliminary proposed amendments that would, if adopted, place modest limitations on federal courts’ consideration of acquitted conduct in sentencing....
In urging the Sentencing Commission to reject the proposed amendments, the government began its argument with a broad reading of United States v. Watts, 519 U.S. 148 (1997) (per curiam). The government argued that the Commission’s proposal to “[c]urtail[] the consideration of acquitted conduct at sentencing would be a significant departure from long-standing sentencing practice” because this “Court has continued to affirm that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.” Gov’t Views at 12-13.
That expansive reading of Watts is deeply at odds with the far more limited understanding the government has presented to this Court.... The government also appears to have reversed its position on whether “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In oral testimony to the Commission in February, the government argued that “[t]he Commission’s proposal is unfortunately inconsistent with [18 U.S.C. § 3661],” a statute governing sentencing law....
Even as the government urges this Court that other mechanisms exist to address a controversial sentencing practice that a host of distinguished jurists have criticized, see Pet. 11-15; Br. of 17 Former Federal Judges as Amici Curiae 1, the government simultaneously invokes a disputed reading of the quarter-century-old per curiam opinion in Watts to defeat even the most modest efforts at reform. And contrary to its assurances to this Court, it now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.
Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level. And absent this Court’s review, there is no prospect of the practice ending at the state level, which comprises “the vast majority of criminal cases in the U.S.”
March 8, 2023 at 09:46 AM | Permalink
Comments
"... laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration."
I keep hoping that the leftwing freak show will quit yelping RACISM RACISM about every single thing, but I see it's not going to happen. This dispute is about burden of proof for sentencing facts, which has zip to do with race.
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"Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level."
I agree with this observation from the amicus, and therefore hope that when (1) the USSC purports to constrain the use of acquitted conduct with some new guideline or commentary, but (2) SCOTUS denies cert in McClinton, the Left won't reverse field and start insisting that the Commission DID TOO bring the curtain down on the use of acquitted conduct.
Posted by: Bill Otis | Mar 8, 2023 2:31:19 PM
While Merrick Garland stumbles over his schadenfreuding text v Louisville police, naught is pummeled by the media about the DOJ's addiction to incarceration. Birds of a feather.
Posted by: Fluffyross | Mar 8, 2023 7:16:45 PM
Fluffyross --
Who's "naught"?
Posted by: Bill Otis | Mar 8, 2023 7:30:21 PM
Forget about the law. At bottom, how do you get judges to ignore what is in front of their faces? Is this just a fool's errand?
Posted by: federalist | Mar 9, 2023 11:47:43 AM
The USSC's guideline amendment proposal is just that the acquitted facts not be used in the guideline calculation; they are not calling for it be ignored entirely at sentencing.
Posted by: Doug B | Mar 9, 2023 12:10:01 PM
Thanks Doug--I was more addressing the idea generally. That's a baby-splitting solution.
Posted by: federalist | Mar 9, 2023 12:24:14 PM
Yep, the USSC proposal is a baby-split, but one that is probably more administrable than many other ways to restrict the use of acquitted facts at sentencing in an advisory guideline system. And, of course, all sentencing policy-making involves some "baby-splitting."
Posted by: Doug B | Mar 9, 2023 12:37:43 PM
Doug --
"The USSC's guideline amendment proposal is just that the acquitted facts not be used in the guideline calculation; they are not calling for it be ignored entirely at sentencing....Yep, the USSC proposal is a baby-split."
But a pretty sorry baby-split. Since the judge can ignore the guidelines and their calculation entirely, the USSC's proposal would leave him free fully to consider acquitted conduct to the same extent he does now -- as you correctly bemoan in your follow-up brief in McClinton.
And, in a real offense system, he SHOULD be free to consider them, unless an acquittal is a finding that the defendant didn't do them. But, contrary to the impression conveyed by the slick pro-defendant sales pitch, an acquittal is no such thing.
Posted by: Bill Otis | Mar 9, 2023 12:51:20 PM
Bill, do you want acquitted conduct considered as part of MANDATORY guideline calculations? Apprendi/Blakely/Booker jurisprudence do not allow you to have both acquitted fact enhancement and legally binding enhancements. Which one do you think is more important (or are you going to keep perplexingly advocating for reforms that pretend Apprendi/Blakely/Booker jurisprudence does not exist)?
Posted by: Doug B | Mar 9, 2023 2:15:30 PM
Doug --
I'll go over this one more time and then call it a day on this subject. It's not that hard. But while we're at it, I could never hope to pretend that Apprendi/Blakely/Booker jurisprudence does not exist to anything like the extent your amicus brief pretends that Watts does not exist.
1. I want a return to mandatory guidelines, as Congress intended and wrote in the SRA of 1984.
2. I want to keep a real offense system, because a real offense is more honest for sentencing purposes than a fake or sliced-and-diced offense system, which is what the defense wants because honesty is not its thing.
3. I understand that an acquittal does not mean the jury has concluded the defendant didn't do it. (You also understand that, don't you?)
4. Where there has been an acquittal and the government wants to take the sentence on the counts of conviction above the max based on acquitted conduct, THEN AND ONLY THEN would the government have to prove that conduct BRD.
5. Otherwise, proof of sentencing facts should stay where it is now, to wit, by a preponderance. If you doubt it's by a preponderance, the thing to do is get your nose out of the computer screen, go down to US district court, sit there for however many sentencings you like, and see for yourself what standard the judge is using. Like I say, this is not that hard.
If you believe in empiricism, fine, go look. I did, for a long time, which is why I'm not a victim of the confusion that befuddles you.
Posted by: Bill Otis | Mar 9, 2023 3:05:28 PM
Bill, yes, federal judges right now sentencing IN AN ADVISORY SYSTEM --- which Booker created specifically to remedy the constitutional problems with the pre-Booker MANDATORY system in which judges found facts that mandated guideline range increases --- are still relying on facts not proven BRD to a jury to make ADVISORY guideline calculations. But judges are only allowed to find facts that way because the federal guideline system is wholly ADVISORY.
You say in point 1 that you "want a return to mandatory guidelines." Fine, so too did former USSC Chairs/Judges Sessions and Pryor. But they fully understand that, to have a mandatory guidelines system in which fact-finding enhances the mandatory range that judges must apply, the only constitutionally permissible system would be to have sentence-enhancing facts subject to proof BRD by a jury. THAT IS THE HOLDING OF BOOKER!
Do you not understand that Booker holds that it is unconstitutional for judges to find sentencing facts that enhance legally binding guidelines ranges by a preponderance IN A MANDATORY STSTEM? I am really starting to think that you actually do not understand what Booker holds. WOW!
I am not sure if you teach sentencing law at Georgetown or anywhere else, but I sure hope you do not if you remain so confused about the holding in Booker and all of modern 5th and 6th Amendment sentencing jurisprudence. And the reason I keep bringing this up is because I still cannot entirely believe that you keep saying/claiming things that are directly contrary to the Booker merits holding.
Posted by: Doug B | Mar 9, 2023 3:56:45 PM
Doug --
-- I won sentencing cases for more than ten years after the MANDATORY guidelines took effect and before Booker came down. How many did you win during that period.
-- The course I teach at Georgetown is called "The Defense Bar's Devotion to Truth." It starts on September 1 and ends on September 2.
-- In the mandatory system, let's say the USSG range was 80 to 100 months. The judge says at sentencing, "I would be giving you 80 months, but everything I've seen and heard from you in court, and everything I read in the probation report, tells me you have a bad attitude and no contrition. So I'm giving you 90 months instead."
Are you telling me that the 10-month uptick has to be justified by proof BRD?? Your words tell me you are, but you can't be serious. The criminal's attitude is a key fact in sentencing, as it should be, and I have never seen or heard of a case in which in had to be "proved" BRD. That's because there is no such case -- and no such law. Not then, not now, and not ever.
Posted by: Bill Otis | Mar 9, 2023 5:43:20 PM
Bill, you talked about having mandatory guidelines with "enhancements" that "only need to be proved by a preponderance." Typically, I think of "enhancements" in terms of factors that drive up (enhance) the guideline range based on specific factual determinations that the guidelines call for --- eg, the obstruction finding or the drug quantity finding that drove up the guideline range in Booker (or, for another example, findings about "loss" under Guideline 2B1.1 that enhance the guideline range for a fraud offense). I am saying those kinds findings within any mandatory guideline system have to be BRD by a jury, because that is what Booker held. Do you disagree on that point? That is what I thought you meant by "enhancements," and that is the key facet of guideline fact-finding that drives the calculation of a guideline range.
If all you are meaning to talk about, Bill, is ONLY how a judge picks a sentence from WITHIN the guideline range, that never has required any findings under any standard either before or since Booker. But it has also never involved anything that could be called "mandatory." Even when the guidelines were mandatory pre-Booker, a judge had complete discretion to pick any sentence WITHIN the calculated range without making any findings by any proof standard, and there never has been any mandatory aspect to this "within guideline" choice. So talking about making the guidelines "mandatory" makes no sense if you only mean to be talking about the within-range exercise of discretion. It is the case that there is no burden or proof for any within-range exercise of sentencing discretion, but is that all you mean to be talking about when saying the guidelines should be mandatory? That is not what I thought you meant; the words you selected confused me, and I am sorry if I misunderstood if you were trying to make only a "within-range" point.
Let's make this simple to be sure we are on the same page, perhaps using the drug guideline. Guideline 2D1.1(b)(1) says that, when sentencing a drug offender, "If a dangerous weapon (including a firearm) was possessed, increase by 2 levels." I am saying that, if the guidelines are to be made "mandatory" again, that finding of weapon possession -- which enhances the guideline range 2 levels --- would be subject to the BRD jury requirement per Booker. Do you disagree?
Posted by: Doug B | Mar 9, 2023 6:28:59 PM
“Lol” is far overused, but in this case I actually did:
“ -- The course I teach at Georgetown is called "The Defense Bar's Devotion to Truth." It starts on September 1 and ends on September 2.”
Posted by: TarlsQtr | Mar 9, 2023 10:59:59 PM
It seems, Tarls, that Bill understands satire a lot better than sentencing law.
Posted by: Doug B | Mar 10, 2023 4:12:55 PM