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July 9, 2023

Inartful dodgers: do our constitutional values suggest there is "no relevant difference ... between acquitted conduct and uncharged conduct"?

In prior posts in my "inartful dodgers" series (which are linked below), I have mostly bemoaned the cert denial statements in the McClinton case from Justices suggesting the Sentencing Commission should first address acquitted-conduct sentencing issues.  Now I want to turn to Justice Alito's concurrence in the denial of certiorari, where he suggests that there are no  acquitted-conduct sentencing issues that need addressing.

To begin, I believe Justice Alito's statement merits praise for (a) making clear why he voted to deny cert in acquitted conduct cases, and (b) stating that, if cert were granted, "better arguments on both sides of the issue may be presented to us, and nothing that I have written here should be understood as the expression of a firm position on that question."  Unlike his colleagues, Justice Alito does not dodge the acquitted-conduct sentencing issue, and he indicates he would be open to considering "better arguments" on the issue, even though he seems a proponent of "countervailing arguments" against any limits on acquitted-conduct sentencing.

But, though I respect Justice Alito's decision to address acquitted-conduct sentencing directly, I fear his vision and framing of the issue fails to respect the deep constitutional values associated with jury trials and their place in our justice systems.  Justice Alito tips his hand, as I see it, when he states in a footnote that "there is no relevant difference for these purposes between acquitted conduct and uncharged conduct."  This seems to me deeply misguided because, as Justice Scalia put it, "the right of jury trial ... is no mere procedural formality, but a fundamental reservation of power in our constitutional structure."

Uncharged conduct has not be formally examined and evaluated by any constitutional actors before its presentation at sentencing; acquitted conduct has been formally reviewed and rejected by a unanimous jury after an adversarial process.  In my view, there is a unique and uniquely important constitutional significance to jurors unanimously decide that a defendant is not to be convicted or punished on certain government allegations.  It is technically right, as Justice Alito notes, that an acquittal does not prove innocence and may just reflect reasonable doubt as to guilt.  But our constitutional values cannot and should not be marginalized via technicalities.  To again quote the Court's work in US v. Booker, interpretation of jury trial rights are not to be driven by "Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance."  That substance is inherently undermined if one regards acquitted conduct and uncharged conduct to be of constitutionally comparable significance at sentencing.

Justice Sotomayor's statement suggested the "woman on the street would be quite taken aback to learn about" acquitted-conduct sentencing.  Justice Alito responds by asserting that, "[i]f that is true, it shows only that many people do not understand" the legal technicalities of what jury acquittals actually prove and do not prove.  But I think it shows far more than that; it shows that the "woman on the street" understands and cares instinctively about constitutional values reflected by the jury trial right and about respecting more than technicalities in jury decision-making.  If only more Justices shared these instincts about juries our constitutional values.        

Inartful dodgers series:

July 9, 2023 at 11:57 PM | Permalink


The issue, ultimately, is one of fairness--if government abuses its ability to use acquitted conduct, there's going to be a response. Sotomayor is a pure demagogue on this issue. It's hard.

Posted by: federalist | Jul 10, 2023 10:58:56 AM

Doug --

"It is technically right, as Justice Alito notes, that an acquittal does not prove innocence and may just reflect reasonable doubt as to guilt. But our constitutional values cannot and should not be marginalized via technicalities."

I must disagree. It's neither marginalization (whatever specifically that might mean) nor technical (as no sane litigator would view the standard of proof as merely technical).

Three of the justices who joined Watts without any dissent were Ginsburg, Breyer and Souter (Scalia, too, now that I think of it). No one thinks any of them was oblivious to the full meaning of the Sixth Amendment, or thinks they wanted to "marginalize" the defendant's right to a jury trial. Indeed, their votes were essential in getting to (the narrowest of majorities) in Booker.

Nor is the subject here a mere technicality. If a jury acquittal meant that the jury affirmative found that the defendant didn't do it, I would agree with the view you take on this matter. But it doesn't mean that. At the time of the Founding, it was not thought that mere sentencing facts had to be proved BRD. If we are to adhere to the originalist approach that you intermittently seem to be fond of, we should maintain that rule today.

Posted by: Bill Otis | Jul 10, 2023 11:26:42 AM

I should add that, while as I noted, Breyer did not dissent in Watts, he wrote a concurring opinion stating that the USSC could (although he did not say "should") reconsider the question whether acquitted conduct could be considered at sentencing. Scalia wrote a one paragraph concurrence noting his view that Breyer was wrong, and that the USSC was required to obey the statute that explicitly places no limitation on the kind of information the sentencing court may consider.

Posted by: Bill Otis | Jul 10, 2023 11:42:40 AM

As for Justice Breyer, Bill, he was in the dissent in Apprendi and Blakely and Booker merits and Cunningham and others so I am 100% comfortable saying he is misguided as to the full meaning of the Sixth Amendment and was always fine with marginalizing the defendant's right to a jury trial (as I sense you are because I think you view the Apprendi line of cases as wrong). As for Ginsburg and Souter (and Scalia and Thomas), I have long thought their votes in Apprendi et al. reflected, at least in part, their realization they were wrong to go along with the per curiam work of the Chief in Watts.

And, as I see it, you (and Justice Alito) are still stuck on technicalities when focused on proof burdens and when failing to respect and appreciate the constitutional value and importance of what a jury acquittal represents --- namely, a unanimous judgment by "the people" in this one case that the defendant should not be held criminally liable and should not be subject to state punishment based on the government's allegations. We do not allow jury acquittals to be appealed (or a second prosecution) even when all would agree that such an acquittal was factually wrongful. These are ways that we give real meaning to the Framers' vision and value of jury trials as "no mere procedural formality, but a fundamental reservation of power in our constitutional structure." Respecting a unanimous jury acquittal has --- or at least should have --- constitutional meaning and import far more than what a prosecutor and judge might believe a defendant may or may not have done or not done or the technicalities of proof burdens. And that is what significantly distinguishes acquitted conduct from uncharged conduct, the unanimous jury --- "the people" --- have spoken. But, like the Donald refusing to accept the people's verdict in the 2020 election, prosecutors do not like when the people reject their allegations, so they run to judges to seek punishment even in the face of their allegations being rejected by the people after a full and fair trial.

Posted by: Doug B | Jul 10, 2023 12:12:52 PM

Doug --

I'm thinking off the top of my head here, trying to untangle the (1) right to a jury determination from (2) the standard of proof at sentencing. So let me ask you (an admittedly academic) question:

Would you be satisfied if, when the jury acquits the defendant of robbing the bank with a gun, but convicts him of robbing the bank, the judge submits to the jury before sentencing this question: "Even though you acquitted on the charge of using a gun when you were required to use the beyond-a-reasonable-doubt standard, is it your view that a preponderance of the evidence shows the defendant used a gun?" If the jury says yes, we think a preponderance of the evidence shows he used a gun, the judge can use that fact at sentencing. If the jury says no, the government didn't even get to a preponderance, he can't.

Would that satisfy your concerns?

It seems to me the issue at the bottom of all this is what the acquittal means, when it could mean many things. So isn't the thing to do to just ask the jury what it means, then be guided at sentencing by its answer?

Posted by: Bill Otis | Jul 10, 2023 12:37:47 PM

Bill, I currently think the jury should, both as a matter of constitutional values and good policy, be informed of the sentencing consequences of their verdicts and also be told they have a right to decide matters of law as well as matters of fact. In other words, I do not view juries (and I do not think the Framers viewed them) as "mere factfinders." Consequently, I would be troubled by any process that turns them into factfinders in service to the work of the state. Jurors are their to check state power, not operationalize it. (I also have due process problems with using civil law fact-finding standards for criminal law consequences, but that is a Fifth Amendment worry more than a jury trial worry.)

Posted by: Doug B | Jul 10, 2023 12:45:54 PM

Doug --

"Bill, I currently think the jury should, both as a matter of constitutional values and good policy, be informed of the sentencing consequences of their verdicts and also be told they have a right to decide matters of law as well as matters of fact."

Could the jury decide as a matter of law that the BRD standard is too high because it releases too many factually guilty people?

Could the jury decide as a matter of law that the unanimity requirement is wrongheaded, and go with a supermajority instead?

Could the jury decide that the court's decision to suppress evidence was incorrect, and consider that evidence anyway?

Could the jury decide that, although the state legislature repealed the death penalty, it's warranted in this case, and therefore direct that the defendant be executed?

If we are to take jury sovereignty seriously, it can't just go in one party's direction (and thus be just code for another goodie for defendants). Sovereignty has to mean it whether the defendant benefits or not.

Posted by: Bill Otis | Jul 10, 2023 1:41:52 PM

Bill, how do we know juries have not (often) done the first three acts you list? There have been plenty of wrongful jury convictions and other jury problems (eg, express discussion of race) that support the supposition that “the people” often have their own view on CJ matters. And yet our system respects the outcome and largely precludes efforts to pierce the sanctity of jury deliberations.

And, if you value individual freedom is more important than state power (as I do), then it can and often should be the case that individuals get benefits in a system that a punitive state does not. You often argue for punitive parity, which to me is another betrayal of constitutional values within a nation “conceived in liberty.”

Posted by: Doug B | Jul 10, 2023 3:24:20 PM

Doug, the second paragraph of your earlier comment shows that sovereignty of the jury as "the people" is not the only ground, nor even the main ground of your opposition to acquitted conduct consideration in sentencing.

Indeed, I doubt that you would accept taking account of conduct acquitted after a bench trial.

Posted by: Jackson | Jul 10, 2023 4:15:53 PM

Jackson, I am not sure what "earlier comment" you are referencing, but you are right that there are multiple reasons why I find acquitted conduct sentencing deeply problematic. But it is most fundamentally because I believe "the people," through the jury, must be able to serve as a case-specific check on punitive government power that I find it so problematic when prosecutors and judges have ways to circumvent that check.

Ultimately, Justice Scalia's powerful Blakely opinion helped me see how important jury trials ae as a structural check on the ever-present risk of prosecutorial overreach. As he put matters in Blakely: "The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish."

Posted by: Doug B | Jul 10, 2023 10:32:33 PM



Posted by: federalist | Jul 11, 2023 11:20:08 AM

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