Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago?

In this prior post, I noted the substantive problems with the cert statements of Justice Sotomayor and of Justice Kavanaugh (joined by Justices Gorsuch and Barrett) suggesting these Justices voted against cert in the McClinton acquitted-conduct sentencing case because the Sentencing Commission was now considering the issue.  I stressed in my prior post that only the Justices can address constitutional questions related to acquitted-conduct sentencing, so the Commission could not itself fully resolve issues raised in McClinton and other acquitted conduct cases.  But, beyond the substantive failings of what might be called the "Commission dodge," it was also quite curious that the references to the Commission's work were dated.  

In Justice Sotomayor's closing paragraph, she says: "The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year."  Likewise, Justice Kavanaugh's statement asserts that "the Sentencing Commission is currently considering the issue" of "use of acquitted conduct to alter a defendant’s Sentencing Guidelines range."  These statements were accurate in late 2022 and early 2023: the Commission in October 2022 voted to make consideration of the use of acquitted conduct in applying the guidelines a policy priority; then in January 2023, the Commission promulgated a proposed guideline amendment to prohibited consideration of acquitted conduct as relevant conduct for guideline enhancements; and in February 2023, the Commission received extensive comment and held a public hearing on this proposed guideline amendment. 

However, the Commission ultimately decided in April 2023 not to address acquitted-conduct sentencing in the 2023 amendment cycle.  Moreover, the Commission released its proposed priorities in June 2023 for the 2024 amendment cycle, and those priorities make no mention of any acquitted conduct issues.  Consequently, it no longer seems to be accurate to state that the Commission "has announced that it will resolve questions around acquitted-conduct sentencing in the coming year" or that "the Sentencing Commission is currently considering the issue."  Though these statements were accurate from November 2022 through March 2023 (which was when, notably, the McClinton case was first conferenced and relisted), these statements are now dated and just not quite right as of late June 2023 when the Justices finally announced  its resolution of a large batch of acquitted conduct cert petitions.  

Ultimately, the substantive failings of the "Commission dodge" by the Justices are more significant and consequential than its untimely (mis)representation of the Commission's activities.  But, if these were the views and votes of the Justices many months ago, why did they sit on these cases for months on end while not bothering to update their statements?  Perhaps ironically, the Commission may well have decided in April 2023 not to address acquitted-conduct sentencing issues because it was expecting some relevant action by SCOTUS in the McClinton case.  Had the Justices in a timely manner denied cert back in late 2022 or early 2023 based on its "Commission dodge," perhaps the Commission would have moved forward with a guideline change in the 2023 amendment cycle. 

Perhaps the Commission will decide to return to this issue in the 2024 amendment cycle, and perhaps the Justices will soon see that whatever work is done by the Commission does not obviate the need for them to resolve enduring constitutional issue.  But, as I mentioned before, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas complained that acquitted-conduct sentencing had "gone on long enough" without being squarely address by the Justices.  With another decade of these matters unresolved, resolution of these issues in all quarters cannot come soon enough. 

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address