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May 24, 2023

Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS

Over at SCOTUSblog, John Elwood has his latest "Relist Watch" posting, and this new post is titled "Acquitted-conduct sentencing returns."   As regular readers know, I have been following a number of cert petitions challenging the practice of judges increasing sentences on the basis of conduct on which a defendant was acquitted; I also filed an amicus brief in one of the cases (in support of petitioner Dayonta McClinton).  The SCOTUSblog post provides this effective review of where matters now stand (links from the original):

Back in January, we noted that the Supreme Court had relisted five petitions challenging the constitutionality of the controversial practice of acquitted-conduct sentencing. (Disclosure: I represent the petitioner in one of those cases.) Under it, the fact that a jury has acquitted a defendant of criminal conduct doesn’t end the risk that he or she will be punished for that conduct; so long as the defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for the conduct of which the person was acquitted. In 1997’s United States v. Watts, the Supreme Court in a summary per curiam opinion held that such enhancements do not violate the double jeopardy clause. Largely based on Watts, every federal court of appeals has rejected challenges brought under the Fifth Amendment due process clause and the Sixth Amendment’s jury trial guarantee. But some state courts have held the practice is unconstitutional, and a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, have criticized the practice.

After that single January relist, the court held those five cases for several months, apparently waiting to see whether the United States Sentencing Commission would act on a proposal that would have placed modest limits on the ability of federal sentencing judges to enhance sentences based on acquitted conduct. The Sentencing Commission recently decided not to act on that proposal this year, although it intends to try again next year. Some of the challengers argue that the Supreme Court should not wait for the Commission to act, because its proposals place only minor restrictions on the practice, and most acquitted-conduct sentences are imposed in state courts beyond the reach of the Commission. Moreover, the challengers note, the federal government argues that the Commission lacks authority to place restrictions on acquitted-conduct sentencing, because 18 U.S.C. § 3661 bars the imposition of restrictions on the information about the background and conduct of defendants that courts can consider.

The Supreme Court has relisted those original five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are.

The next order list will be Tuesday morning, May 30, when I just happen to have something else of even more importance to attend to.  Since I will likely be unable to blog for most of Tuesday, I have already predicted to some colleagues that there will be all sorts of SCOTUS acquitted-conduct action that day.  We shall see, and I will surely get to catch up on blogging at some point.

A few recent of many, many prior related posts:

May 24, 2023 at 10:14 PM | Permalink


Doug --

How can she be graduating? I mean, just last week she was 8.

And in other news...............what kind of SCOTUS action are you predicting. A bunch of cert denials with various dissenting or separate statements?

Posted by: Bill Otis | May 24, 2023 11:25:31 PM

Truly nuts that they grow up so fast, Bill, especially as I get more juvenile every year.

As for SCOTUS action, I am expecting dueling statements regarding denials -- which would in part explain all the relists. The statements in support of denial will likely stress Congress (and the USSC?) can address these matters; the dissent will likely say Watts was a mistake or at least ought to be reconsidered. I am wondering if there could be 3 or even 4 statements. Of course, who knows. I am inclined to guess, based on recent harmonies, that Justice Gorsuch and Jackson will be together.

That said, it seems to me a bit possible they are having a robust debate over the best vehicle for cert. But this may be just wishful thinking.

Posted by: Doug B | May 25, 2023 1:28:21 PM

From quick review of this morning's list, it looks like they relisted the cases again.

Either we are looking at some types of opinions respecting the denial of certiorari or there is some other case on this issue in which they are expecting a petition before they decide which cases or cases to take on this issue.

Are there any petitions pending related to the consideration of acquitted conduct in a non-guideline state? I could see them potentially wanting to take one guidelines case and one non-guidelines case to consider both aspects of the use of acquitted conduct.

Posted by: tmm | May 30, 2023 9:50:56 AM

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