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March 6, 2024
USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate
I was only able to listen to some of the 4+ hours of testimony and discussion today about acquitted conduct sentencing at the US Sentencing Commission, which is only on day one of its extended hearings regarding its proposed amendments to the US Sentencing Guidelines. This USSC hearing page now has the written testimony of all 15 persons who appeared before the Commission to discuss acquitted conduct, and those fascinating written submissions capture much of the diversity and divergence in the views expressed on this long-simmering (long-boiling?) federal sentencing issue.
As I listened to the public hearing, the testimony and discussion with Commissioners reinforced for me all the delivish details that necessarily arise in trying to define acquitted conduct, and in trying to develop clear sentencing rules concerning when and how such conduct should or should not be considered at sentencing. Long-time readers know that I have long been troubled by sentence enhancements based on acquitted conduct, though I have also long recognized how challenging it can be to write sound and effective sentencing rules in this space. Indeed, as the USSC hearing explored many of the delivish details today, it was clear how acquitted conduct's intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.
And yet, while today's hearing made acquitted conduct complications ever so salient, it also help remind me that the issue is really just a variation on a criminal process debate well articulated 60 years ago by Herbert Packer in his classic "Two Models of the Criminal Process." Prof Packer famously wrote about two criminal process models — that is, "two separate value systems that compete for attention in the operation of the criminal process" — in the form of "the Due Process Model and the Crime Control Model." Though perhaps trite and obvious to many, today's USSC discussion highlighted for me how advocates for limits on acquitted conduct sentencing are often giving voice, in one way or another, to the Due Process Model while defenders of acquitted conduct sentencing are humming a variation on the Crime Control Model tune.
In addition (and perhaps providing just another take on the same point), I was reminded today of my colleague Alan Michaels' terrific 2003 article on "Trial Rights at Sentencing." Though Prof Michaels only looks at Supreme Court jurisprudence regarding defense rights in that article, he usefully describes and summarizes his accouting of SCOTUS rulings this way:
Rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing. Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant's favor or primarily protect the defendant's autonomy — do not apply at sentencing.
Framed only a bit differently, one might see concerns for sentencing "accuracy" to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct. But the jury trial right is fundamental to our nation's vision of Due Process and our commiement to "defendant special protections," and that's surely why many are troubled by any judicial sentencing process that functioanlly disregards a jury's decision to acquit on certain charges.
Of course, Prof Packer stressed his "polarized models" are archtypes that do not capture the "conflicting schemes of values" that so many embrace. Indeed, I suspect most everyone is eager to pursue both crime control and due process; and yet, a hard topic like acquitted conduct sentencing may require marking a hard choice about which models and values to prioritize. It will be very interesting to see where the USSC winds up in this amendment cycle.
March 6, 2024 at 04:33 PM | Permalink
Comments
Let's assume we'll use the DP model. That would mean the court cannot use acquitted conduct if the acquittal means, as it sometimes does and sometimes doesn't, that the jury has concluded the defendant simply didn't do it. But if the acquittal on Count X doesn't mean that, and means instead that the jury used nullification on Count X notwithstanding its conclusion that he was factually guilty, then there is no DP barrier to the court's using acquitted conduct so long as it finds by a preponderance that the defendant did it.
So it's just common sense to ask the jury what, specifically, its acquittal means. In other words, put away the ideology and the assumptions and ask questions instead.
Posted by: Bill Otis | Mar 6, 2024 6:45:50 PM
Part of the issue, and this may be a difference between guidelines system and other systems is how the acquitted (or uncharged) conduct is being used. If the conduct goes to a specific guideline enhancement, there is some analogy to a higher range of punishment. In that case, perhaps, there should be a BRD requirement and a a DJ bar to using that enhancement in the same case in which the jury already rejected that enhancement.
On the other hand, particularly in a nonguideline system, where this acquitted conduct is simply part of the general character assessment of the offender in a loose attempt to fit the penalty to the offender, the argument that we should allow a defendant free reign to show his good character but that stringent restrictions should be put on bad character evidence is less compelling.
Posted by: tmm | Mar 6, 2024 7:39:32 PM
tmm --
What if there are nominal guidelines, but ones that the judge can disregard if he chooses (which in federal law is what we have now)?
Posted by: Bill Otis | Mar 6, 2024 7:59:26 PM
I think you misunderstand the DP model, Bill, and perhaps the exclusionary rule serves as a good comparable. I sense fans of the DP model want illegally obtained evidence to be excluded even if and when it provides compelling evidence of guilt. Similarly, I think a fan of the DP model would want acquitted conduct excluded even if a judge were to find, by a preponderance or even BRD, that the defendant was actually guilty. The DP model cares more about respecting/safeguarding a process considered "due" (eg, by requiring a jury determination of guilt BRD) than about making sure the guilty are "accurately" punished (eg, by allowing a judge to assess guilt without concern for any jury determinations).
Notably, tmm, the US Sentencing Commission has not proposed any reforms that would amount to a total ban on considering acquitted conduct at sentencing. (A bill to this effect was passed by an overwhelming margin by the US House (405-12) back in 2022, but it never got a Senate vote.) The USSC's boldest proposal is to preclude consideration of acquitted conduct in the calculation of the applicable sentencing range, with judges still to be allowed to consider such conduct in decided to depart from the range. I think the USSC might ultimately advance such an amendment with a narrow defintion of acquitted conduct and/or exclusions from the prohibition. But maybe not.
Posted by: Doug B | Mar 6, 2024 8:35:00 PM
Doug --
"The DP model cares more about respecting/safeguarding a process considered "due" (eg, by requiring a jury determination of guilt BRD) than about making sure the guilty are "accurately" punished (eg, by allowing a judge to assess guilt without concern for any jury determinations)."
Under my proposal, the judge would be very much concerned about the jury's determination, and would want to know specifically what it is. Acquittals might mean the jury found that the defendant didn't do it, but sometimes they mean something else (indeed, Special Counsel Robert Hur declined to indict Biden, not for lack of evidence of guilt, but because the evidence probably wouldn't be pungent enough to convince a jury to take the jarring step of sending a forgetful old man to jail).
Posted by: Bill Otis | Mar 7, 2024 12:12:25 AM
Again, Bill, I think you are missing this distinction between prioritizing fact-finding accuracy with respect to guilt (Crime Control Model) and prioritizing a particular process that is "due" to a defendant regardless of accuracy (Due Process Model). The crime control model prioritizes accuracy and so would want a judge to scrutinize the reasons for any jury acquittal and would want a judge to sentence based on acquitted conduct if the judge reached the conclusion that the accurate facts pointed to guilt. The due process model prioritizes process to protect defendants and so would not want a judge to ever look behind a jury determination at sentencing because the "process" of a jury acquital should garner a certain kind of respect and protection for defendants no matter the jury acquittal's perceived accuracy as to factual guilt.
Notably, in a distinct setting, a unanimous SCOTUS recently asserted that "a jury’s verdict of acquittal is inviolate" and that "the jury holds an unreviewable power to return a verdict of not guilty even for impermissible reasons" and that "once there has been an acquittal, our cases prohibit any speculation about the reasons for a jury’s verdict." That sounds like Due Process Model talk, though SCOTUS has not extended this reasoning to sentencing decision-making; and my colleague's article linked above details that SCOTUS often resists extending broader Due Process Model thinking to the sentencing settings.
Posted by: Doug B | Mar 7, 2024 9:28:45 AM
What does 'asking the jury" even mean? What is some jurors acquitted because they thought he didn't do it and others because they thought he probably did it but not BRD? Would the judge go by majority vote?
I oppose acquitted conduct sentencing simply because it shocks the conscience. Well, it shocks *my* conscience, anyhow. But then I feel the same way about civil forfeiture ("our dog ruled that that's drug money, so we're keeping it") and civil commitment ("he served his full sentence, but our shrink ruled that he's still dangerous, so he'll remain locked up").
Posted by: Keith Lynch | Mar 7, 2024 12:12:51 PM
Biil, I am fortunate enough to practice in a state without guidelines. In my mind, I think the issue is how strong the presumption is that a person should get a guideline sentence. (And I recognize that this has been part of the issue in Booker and post-Booker guidelines cases at the Supreme Court.) When the evidence is more to the how bad is this guy in some general sense, I am less troubled by using acquitted and uncharged conduct as that is how sentencing has worked for decades. When it is tied to a specific sentence as the presumptive sentence that seems to me to be more of a finding that should require something more.
Posted by: tmm | Mar 7, 2024 1:37:42 PM
Keith Lynch --
"What does 'asking the jury' even mean?"
A special verdict form.
Posted by: Bill Otis | Mar 7, 2024 2:07:03 PM
Bill,
I believe Mr. Lynch was asking more about the unanimity -nonunanimity line, Guilt has to be found unanimously, but jurors can have any number of reasons not to convict. Some might not be convinced of the charges, someone else might be convinced but just choosing to say "screw you" to the prosecutor, and yet someone else could believe that the particular law is unjust. How is a special verdict form to capture these nuances, and some of these I don't think we could even count on jurors being honest about their reasons.
Posted by: Soronel Haetir | Mar 7, 2024 2:38:32 PM
Correct. This isn't exactly the first time Mr. Otis misunderstood something I said. Not even the first time today. Nobody else seems to have that problem with what I write or speak.
I seem to recall that in Scotland there are three possible verdicts, guilty, not guilty, and not proven. I don't know what the differences in consequences are between the last two. Nor do I know whether unanimity is required. I expect that it's harder to get a group of people to all agree on one of three choices than on one of two.
Posted by: Keith Lynch | Mar 7, 2024 7:15:37 PM
Soronel --
How probing the special verdict form would have to be is a good question, and of course it's true that some members of the jury could think X and some others could think Y. It was not my intent in this forum to explore the details; that would take more like a law review article. My point is that I'm more open to an acquitted conduct limitation than many conservatives are, BUT I don't want it to sweep more broadly than what the jury actually thought, to the extent that can be determined. In the meantime, this issue is governed by existing law, United States v. Watts, 519 U.S. 148 (1997). If it stays that way, I won't lose any sleep.
Posted by: Bill Otis | Mar 8, 2024 12:41:47 AM
Based on GOP votes in Congress, Bill, many more conservatives are much more open to sweeping limits on acquitted conduct sentencing than you are. As noted before, in 2022, well over 90% of the House GOP members voted for the Prohibiting Punishment of Acquitted Conduct Act of 2021. And this past November, the House Judiciary Committee, now led by Jim Jordan, approved the 2023 version of the bill by a unanimous 23-0 vote: https://sentencing.typepad.com/sentencing_law_and_policy/2023/11/prohibiting-punishment-of-acquitted-conduct-act-receives-unanimous-bipartisan-support-in-us-house-ju.html
That bill, notably, sweeps far more broadly in restricting the consideration of acquitted conduct at federal sentencing than anything the US Sentencing Commission has proposed. And, to date, only a tiny minority of GOP reps have voted against it.
Posted by: Doug B | Mar 8, 2024 8:06:24 AM
Doug --
And a lot more Republicans voted for Trump in the primaries than the candidates I wanted -- first DeSantis and then Haley after he dropped out. Makes no difference to me. I pay attention to what majorities want, because just dismissing the opinions of others is not what thinking people ought to do, but I'm not controlled by them, either.
The governing law here is Watts, and the governing standard at sentencing is preponderance of the evidence, a considerably less demanding standard than the one applied at the guilt phase. And lining up for a bill is not PASSING the bill, which is what the Constitution requires.
Of course in the real world, this dispute is pretty minor. 95% of cases get resolved through bargains, and most bargains feature an agreed-upon sentencing range. In the great majority of the very few cases that go to trial, the jury either convicts on everything or acquits on everything (mostly the former). And, as you point out, the USSC draft proposal on this is not exactly earth-shaking, even if the pronouncements of the USSC were still mandatory, which they haven't been for almost 20 years.
Posted by: Bill Otis | Mar 8, 2024 1:55:23 PM
Bill, are you going soft on me, Haley, an apologist for BLM riot violence is a squish. Trump, for all his flaws, was a good president, and let's face it, he definitely got screwed in the election. You think no illegals voted? I got a bridge to sell you.
Posted by: federalist | Mar 8, 2024 3:27:42 PM
Bill, I was only seeking to respond to your assertion that "I'm more open to an acquitted conduct limitation than many conservatives are." I think that statement reflects a misunderstanding of what many conservatives have signalled on this issue. I know a number of conservative groups, such as the American Conservative Union and Americans for Prosperity, have endorsed the broad Prohibiting Punishment of Acquitted Conduct Act. And, as I stressed before, based on GOP votes on this bill in the House (which has a pretty conservative GOP contingent), it would certainly seem that "many more conservatives are much more open to sweeping limits on acquitted conduct sentencing than you are."
Perhaps you think the overwhelming House GOP votes for what you might call a pro-criminal bill does not tell us much about what "real" conservatives think. Or maybe your prior comment was referencing distinct conservatives. I was simply trying to undermine the suggestion that there is significant partisan divide on what you reasonably describe as a "pretty minor" issue. Indeed, it is in part because this issue is practically minor, and yet symbolically major, that I sense there is bipartisan support for reform (and also why I am rooting for the USSC to act boldly). And, importantly, the bipartisan support for a broader bill in Congress should inform the USSC's deliberations: the Commission can know that it is likely to have broad bipartisan support for any and all acquitted conduct sentencing reforms it might advance during its current guideline amendment cycle.
Posted by: Doug B | Mar 8, 2024 3:28:13 PM
federalist --
I have one overriding objective in the upcoming election, to wit, to retire Joe Biden. He's too old for the job, as 70% of the country knows, and his party is too captured by Wokeism, race-huckstering, limitless illegal immigration, billions in tax giveaways to student deadbeats, irresponsible fiscal policy, skepticism about the basic decency of America, and (increasingly) anti-Semitism. So the question for me is who has the best chance of beating him.
At first I thought it was DeSantis. OK, wrong about that. Then there was Haley, who still beats him in the polls by considerably more than Trump does. If as you say she has sided with BLM, that would be really bad, but it's not the whole story. On the whole, she seems like a Reagan/Bush conservative. And Trump has some spots on his record, namely, for one, his decisive support for the First Step Act.
Trump is likely to win against Biden, yes. See my post yesterday, here: https://ringsideatthereckoning.substack.com/p/its-over-for-joe. And the betting markets favor him pretty decisively right now. But I think Haley is, overall, a better bet -- or so a variety of polls tell me. That's among the main reasons I would vote for her (although it's a moot question now).
Posted by: Bill Otis | Mar 8, 2024 10:18:06 PM
So, Mr. Otis, you prefer the man who is charged with 91 crimes to the man who has never been charged with anything. Who is pro-crime now?
Or do you think he's wrongfully accused, unlike all other accused people in US history?
Posted by: Keith Lynch | Mar 8, 2024 11:56:00 PM
What a bout a person who was found not guilty for the gun but still received a 2 point gun enhancement? I work at a federal facility in the drug program and a few guys don't get the year off because id a gun enhancement and they didn't learn that until that arrived at the facility their lawyers don't tell them and the judge doesn't make it clear to them either, they just hear the gun charge was dismissed and they think their good.
Posted by: Mike Smith | Mar 9, 2024 1:32:30 AM
Keith Lynch --
Aren't you the guy who was asking me the other day whether Jesus Christ was wrongly accused? Would you blame me for voting for Jesus?
Goodness gracious what a dope you are.
When I was a federal prosecutor, I never told the jury, and I never believed (then or now) that the fact that a person is accused per se means he's guilty. He has to be PROVED guilty, either by a trial or, as in your case, by a counseled plea of guilty in open court.
Posted by: Bill Otis | Mar 9, 2024 3:25:22 PM
Keith Lynch --
"So, Mr. Otis, you prefer the man who is charged with 91 crimes to the man who has never been charged with anything. Who is pro-crime now? Or do you think he's wrongfully accused, unlike all other accused people in US history?"
And where exactly have I said that everyone who's been accused in US history is guilty? No, really, where? Got a quote?
Of course you don't, because you're making it up (again). Over and over in this forum, I've talked about the false accusations made against the Duke lacrosse players by a race-huckstering DA. Over and over, I've talked about the false accusations made against Kyle Rittenhouse. I've talked about the cooked-up case against Sen. Ted Stevens -- a case so malodorous that the AG later had to move to vacate (which motion was granted).
So your suggestion that I believe everyone who has been accused in US history is guilty is a point-blank lie. Admit it and apologize.
Posted by: Bill Otis | Mar 9, 2024 7:06:21 PM
Not Bill, but I do agree with him that of course there have been wrongful convictions and even more wrongful indictments. But I firmly believe that the vast majority (as in 99+%) of both are valid. Where that last decimal goes could be debated, is it 9.99%, maybe even higher?
Posted by: Soronel Haetir | Mar 10, 2024 1:29:36 AM
Soronel --
Because human beings are fallible in the administration of law as in everything, erroneous convictions and erroneous acquittals are inevitable. Obviously people of good faith, which is the great majority of us, try to reduce error as much as we can, given, however, that the resources we can devote to the criminal justice system are finite and have to compete with other public needs.
I found one piece from a TV station in Minneapolis that looked into it in 2021 (https://www.kare11.com/article/syndication/podcasts/record-of-wrong/how-many-innocent-people-are-in-us-prisons/89-cc7d1412-0eec-48af-9168-319f96f887dd). This is what it says:
"No one knows how many wrongfully convicted people are sitting in U.S. prisons, but we do know they’re there. That’s because sometimes there’s proof. The most definitive way to root out wrongful convictions is DNA testing, which has cleared 375 people in the U.S. since 1989. Twenty-one of them were on death row.
"Researchers can use the number of DNA exonerations and extrapolate from there to estimate how many innocent people are in prison right now. Most estimates put the number between 1% and 5%." ###
Using the high end of that estimate, of every 20 prisoners, 1 is innocent and 19 were correctly found guilty. (I have not been able to find any study on how many guilty people are erroneously acquitted, or, far more frequently, never even charged).
Keith Lynch lives in a dark fantasy world, in which actual guilt makes next to no difference, and the innocent have about as much chance of going to jail as the guilty. Perhaps this is the reason he harbors such unhinged hatred for the system (or perhaps it's some other sort of psychological difficulty I don't know about). One way or the other, while it's true that some accused people are innocent (and some vicious criminals are never even charged), the system functions far better than he gives it credit for. And it would function better still if people, both the parties and their lawyers, would tell the truth in court.
Posted by: Bill Otis | Mar 10, 2024 3:44:19 AM
