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July 4, 2023

Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address

In the Declaration of Independence, signed 247 years ago today, the Founder of this Nation complained of a "long train of abuses and usurpations" by "the present King of Great Britain," which included "depriving us in many cases, of the benefits of Trial by Jury."  And the jury trial right was so important to the Framers that it was twice placed in our Constitution.  Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.”  The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  So, the jury trial right has been considered so essential to a just American system of justice that it helped inspire a revolution and was doubly codified in our Constitution.

The Supreme Court has recognized its role in protecting the constitutional jury trial right, recognizing that "the jury right could be lost not only by gross denial, but by erosion," Jones v. United States, 526 U.S. 227, 248 (1999), and striking down practices that amount to an "unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." Apprendi v. New Jersey, 530 U.S. 466, 497 (2000).   Court protection of the jury trial right is critical, as Justice Scalia explained for the Court, because it is a "fundamental reservation of power in our constitutional structure" and because the "judge’s authority to sentence derives wholly from the jury’s verdict.  Without that restriction, the jury would not exercise the control that the Framers intended."  Blakely v. Washington, 542 U.S. 296, 305-06 (2004).

Against this backdrop, it is quite obvious that objections to the use of acquitted conduct at sentencing raise constitutional issues.  The cert petition filed by Dayonta McClinton makes this clear in its Question Presented: "Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant."  That petition notes, inter alia, that some state courts have found due process rights, as well as the jury trial rights, violated by acquitted-conduct sentencing.   These rights are, as the Court put it in Apprendi, "constitutional protections of surpassing importance" because they define restraints on state powers and processes to impose criminal punishments.

These constitutional realities and stakes, properly understood, reveal the limited significance of the prospect of the US Sentencing Commission (or even Congress) someday promulgating guidelines concerning the use of acquitted conduct at federal sentencing.  How the USSC (or Congress) might choose to regulate sentencing law and process would not and could not resolve the array of constitutional concerns that the Supreme Court was asked to consider in McClinton.  Indeed, the USSC and Congress cannot even know the full reach and limits of their powers to set forth rules concerning acquitted-conduct sentencing with constitutional matters unresolved.  And, of course, the USSC and and Congress can only speak to the use of acquitted conduct at federal sentencing, even though the vast majority of criminal cases (over 90%) are sentenced in state courts (which also struggle with constitutional uncertainty in this arena). 

This is one of many reasons I found so curious aspects of the statements of Justice Sotomayor and of Justice Kavanaugh (joined by Justices Gorsuch and Barrett) respecting the denial of certiorari in McClinton.  The statements suggested these Justices voted against cert because the Sentencing Commission was considering new guidelines for acquitted-conduct sentencing.  For example, Justice Kavanaugh states that it is "appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct."  But he does not explain why it is "appropriate" to leave unresolved a constitutional issue while a federal agency might address a policy issue.  Most fundamentally, the Justices' statements referencing the USSC does not account in any way for how any "Sentencing Commission determination" would have any impact on the Court's consideration of "constitutional protections of surpassing importance."

I fully recognize that the Fifth and Sixth Amendment issues surrounding acquitted-conduct sentencing present challenging constitutional issues.  But dodging those issues by trying, in essence, to punt them to an agency that can only make policy determinations is not just "inartful," but really an abdication of constitutional responsibility by Supreme Court Justices.  On a day we celebrate throwing off "abuses and usurpations" that included deprivations of "the benefits of Trial by Jury," I hope that citizens of this country will keep asking the Justices to live up to their responsibility to fully adumbrate just what those "benefits" are in modern American.  

Inartful dodgers series:

July 4, 2023 at 11:47 AM | Permalink


Instead of the usual arguments from the usual people (including me), let me ask whether anyone knows of any neutral, fair-minded, non-advocacy research or writing that's been done on the question whether, at the time of the Founding, judges or juries imposed sentence. Did it differ from one colony to the next? Did it differ based on the nature of the offense? Did it mimic English practice? And for that matter, what was English practice?

Posted by: Bill Otis | Jul 4, 2023 5:11:36 PM

Justice Thomas covers much of the historical practice in his concurring opinion in Apprendi and in his opinion for the Court in Alleyne, where he documents the "well-established practice of including in the indictment, and submitting to the jury, every fact that was a basis for imposing or increasing punishment." (Interestingly, much of Justice Thomas's analysis runs from 1840 onward, though I have not seen many thorough accounted of pre-1800 practices.)

Posted by: Doug B | Jul 4, 2023 6:09:04 PM

Doug --

Thanks for pointing that out.

I would say only a couple of things at this point. One is that I wonder if it's fair to accuse the justices of being "dodgers." It seems more likely to me that a majority of the present Court simply think existing precedent (Watts) is correct. Satisfaction with existing precedent is by a huge measure the main reason cert gets denied.

My other point is that some of the basics of the argument against using acquitted conduct also cut against the Guidelines' relevant conduct rule, and the relevant conduct rule is central to Congress's decision to build the Guidelines on a real offense system. Having been there at the time, I can tell you that that decision was not lightly undertaken.

This is spelled out in an entry I found from a law firm and will pass on here:

Is Relevant Conduct Next?

If relying on acquitted conduct to enhance a defendant’s sentence is antithetical to a fair sentencing system, could the entire concept of relevant conduct itself be the next domino to fall? Under Section 1B1.3, defendants often have their guidelines ranges enhanced by other types of relevant conduct, including uncharged or dismissed conduct. In some ways, increasing a defendant’s sentence based on uncharged or dismissed conduct seems worse than doing so based on acquitted conduct. At least with acquitted conduct, the conduct was charged and the defendant had the opportunity to rebut it at trial. But in the case of uncharged conduct, the allegations never even made it before a grand jury. Yet, the defendant is forced to challenge those allegations for the first time in front of a sentencing judge, with a much lower burden of proof facing the government.

To many, the sentencing commission’s proposed curtailment of acquitted conduct sentencing is a step in the right direction. But it remains to be seen whether the sentencing commission continues on the path of reform and re-evaluates the entire concept of relevant conduct. There is a certain intuitive appeal to the notion that a defendant should only be punished for conduct that has been admitted, or that a jury has found proven beyond a reasonable doubt. Getting there, however, would require the sentencing commission to move closer to the charge offense system it previously rejected when it drafted the guidelines in the first place. With the recent momentum, there is no time like the present to revive that debate.

Posted by: Bill Otis | Jul 5, 2023 11:30:54 AM

Might the Justices are thinking about how many incarcerated defendants might seek to get back into Court with 2255 Habeas Corpus Motions, to have their sentences recalculated and reduced, if the Supreme Court holds that the use of acquitted conduct to enhance sentences violates the 5th and 6th Amendments to the Constitution? Surely the effects of such a decision would be retroactively applicable on collateral attack. Could be that half of the inmates in the BOP would qualify.

Posted by: Jim Gormley | Jul 5, 2023 4:13:42 PM

Jim, I think you are correct. I believe Justice Ginsburg was not in favor of making Apprendi retroactive because it would clog up the court.
I have a psi where there is an admitted Apprendi violation. The prosecutor told the judge it was harmless error and that is how the sentencing goes.

Posted by: beth curtis | Jul 5, 2023 8:36:02 PM

Bill, you may be right that a majority of the current Justices are fine with Watts. If so, they should just keep denying cert without fanfare or delay. But they sat on and relisted McClinton and a number of other like cases for nearly a full year AND then four Justices talked up taking up the issue after the Commission acts (or fails to act). And, Justice Thomas, who called for taking up this issue a decade ago, has now gone silent. That all feels like "inartful dodging" to me.

Jim, I could imagine this Supreme Court finding any new acquitted conduct rule to be procedural rather than substantive so as to avoid retroactivity. (In addition, USSC data suggest that there are likely at most a few thousand federal prisoners serving sentences enhanced by acquitted conduct, though maybe thousands more would claim they had such sentences.)

Posted by: Doug B | Jul 5, 2023 9:05:24 PM

Doug --

I wasn't a SCOTUS clerk (never applied) so I don't know how things work up there in the detail I would need to. My guess is that the McClinton can got kicked down the road as more prominent issues demanded attention. My impression is that the justices broadly defer to one another when one or another of them wants to write something. It kind of feels to me as well like there was some indecision on whether there would be a fourth vote for cert. I agree this is not the most organized way to go about things, but it's probably useful in preserving collegiality in an ideologically deeply divided Court.

Posted by: Bill Otis | Jul 6, 2023 8:52:31 AM

The Justices' are tasked with resolving cases, not "preserving collegiality." If they delay resolution of a case for nearly a year for opaque reasons, and then resolve the case in a ham-handed way, that all amounts to "inartful dodging" in my eyes.

Posted by: Doug B | Jul 6, 2023 5:43:22 PM

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