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April 17, 2024
US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations
At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations. The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive. The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC's data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.
A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.
UPDATE: Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading "Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines":
The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.
“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country. Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.
In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve. The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts. And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.
These and all other amendments passed by the Commission today will be posted here. The Commission will deliver amendments to Congress by May 1, 2024. If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.
April 17, 2024 at 01:48 PM | Permalink
Comments
I haven't watched the recording, but is there anything there or in the transcripts regarding the retroactivity of the amendment on youthful offenders?
Posted by: Anonymous | Apr 17, 2024 6:05:09 PM
-- "Not guilty means not guilty,” said Chair Reeves. “ But it doesn't mean the defendant didn't do it. And the general rule for finding sentencing facts remains preponderance, not BRD -- something the USSC did not and cannot change (nor should it be changed).
-- "The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines."
Of course not being used in calculating the range is vastly different from not being used IN IMPOSING THE SENTENCE, which is as often outside the range as it is inside. Not that it makes a world of difference anyway, since post-Booker and post-Kimbrough, sentencing courts are not bound by what the Commission says in any event.
Posted by: Bill Otis | Apr 17, 2024 11:56:00 PM
What are the changes to the gun and financial crimes?
Posted by: Respondent | Apr 18, 2024 4:42:03 AM
Anonymous: because the youthful offender amendment concerned only a departure provision, I do not think it is a proper basis for retroactivity since it would not change any guideline ranges.
Respondent: the gun amendment revised the language of an enhancement based on obscuring a serial number (to narrow it in line with some circuit rulings); the 2B1.1 amendment served to move loss calculation commentary into the guideline, which will served to deal with a Third Circuit ruling that the commentary placement makes part unenforceable.
Bill: sentencing courts are bound to calculate the guidelines properly as instructed by the Commission, but then have broad authority to sentence outside the guidelines thereafter based on the 3553(a) factors. Indeed, in acquitted cases like Jones and McClinton that got some SCOTUS attention, judges sentenced below the guideline-calculated ranges that were then driven by acquitted conduct. But after Nov 1, 2024, absent Congress intervening, the guideline benchmark and starting point will operate the other way: the guideline range won't include acquitted conduct and a judge will have to decide to increase a sentence based on that conduct under the 3553(a) factors.
Speaking of Congress, Bill, your comment is a good reminder of why The Prohibiting Punishment of Acquitted Conduct Act of 2023 is still significant after this guideline amendment. That bill, which was passed by the House by a vote of 405 to 12 in a prior Congress, would entirely prohibit the consideration of acquitted conduct in aggravation. I suspect this guideline amendment actually make passage of this broader bill less likely, but its passage may not have ever been all that likely.
Posted by: Doug B | Apr 18, 2024 9:12:58 AM
Doug --
"...sentencing courts are bound to calculate the guidelines properly as instructed by the Commission, but then have broad authority to sentence outside the guidelines thereafter based on the 3553(a) factors."
Calculate, schmalculate. We both know that the only part of your sentence that counts is the second part, to wit, the judge can then do what he wants anyway. Ask any defense lawyer.
"in acquitted cases like Jones and McClinton that got some SCOTUS attention..."
What a beautifully opaque way of saying cert was denied, in McClinton without so much as a dissenting vote. Nine-to-zip is only so impressive as "getting attention." I did better than that in Dickerson, but no one thinks that, for all the "attention" my arguments got, Miranda isn't still ruling the roost.
The truth is that, both for now and after Nov. 1, any federal judge who wants to can take account of acquitted conduct in sentencing provided it's been shown by a preponderance. And of course the federal Sentencing Commission has no authority over state sentencing, which is the huge majority of it.
Posted by: Bill Otis | Apr 18, 2024 1:10:40 PM
Thank you Doug! You said, "because the youthful offender amendment concerned only a departure provision, I do not think it is a proper basis for retroactivity since it would not change any guideline ranges." So, if a person was already sentenced and the judge agreed to a downward departure because the defendant qualified for a safety valve, this new amendment would not be the reason to bring it back to the judge to see if the youthful age of the defender at the time of the crime could be the reason for a bigger departure? Sorry I am not a lawyer and haven't even studied law, so I am likely saying it all wrong...
Posted by: Anonymous | Apr 18, 2024 2:01:46 PM
Bill, your efforts to ignore a significant defeat to your affinity for acquitted conduct sentencing enhancement is impressive. Where to begin: if you really thought the only part of sentencing that "counts" now is judicial discretion under 3553(a), would you be indifferent to a proposal to cut all guideline ranges by 50%? By 90%? The data from the USSC make very clear that the still guidelines "count" a whole lot --- not only because they are calculated in every case and followed in many, but also because non-guideline sentences are always tethered to the calculated range. Of course, you know the guidelines still matter a lot, and so prohbiting acquitted conduct from being used in guideline calculations is certainly a big deal.
Speaking of a big deal, SCOTUS' comments in McClinton sure contributed to the USSC finally addressing acquitted conduct (unanimously at that). SCOTUS had denied dozens of cert petitions before and after Jones, and yet the USSC kept ignoring this issue. Perhaps inspired by the overwhelming vote by the House for an even bolder approach, the USSC finally realized that leaders in both Congress and the judiciary favored action. And significant action we got.
As for state sentencing, a number of states by constitutional rulings and by sentencing rule do not allow acquitted conduct to significantly impact sentences. But if you want to find a way to keep celebrating extra punishment without jury support, don't forget there are lots of nations without jury rights at all. Your disdain for the work of juries would surely be embraced in many other parts of the world.
Anonymous: I cannot give informed advice without lots of details, but I think what you are saying is right. Based on various legal developments, persons in federal prisons should check with their lawyers about the possibility of new helpful developments. But I doubt the new youthful offender departure provision can impact past cases.
Posted by: Doug B | Apr 18, 2024 4:48:26 PM
Doug --
"Where to begin: if you really thought the only part of sentencing that "counts" now is judicial discretion under 3553(a), would you be indifferent to a proposal to cut all guideline ranges by 50%? By 90%?"
I wouldn't be entirely indifferent, no. In fact, I love it when the crackpot contingent of the pro-crime crowd comes out from behind the curtain with extremist nonsense like this. But I don't take their proposals seriously any more than any other reasonably sober person does.
"The data from the USSC make very clear that the still guidelines "count" a whole lot..."
Every agency in town is in love with its own importance -- as you, the arch-enemy of Big Government, undoubtedly know better than most people.
"Speaking of a big deal, SCOTUS' comments in McClinton sure contributed to the USSC finally addressing acquitted conduct (unanimously at that)."
There was not a single comment by the Court -- that's just flat-out false. And what "contributed" to it was the fact that the entire USSC is now Biden-appointed, something that not was the case before. I guarantee you this subject got raised at their White House vetting.
"As for state sentencing, a number of states by constitutional rulings and by sentencing rule do not allow acquitted conduct to significantly impact sentences."
Define "a number" and "significantly." Look, I can spot weasel wording -- I spent years answering defense lawyers' briefs, remember?
"But if you want to find a way to keep celebrating extra punishment without jury support, don't forget there are lots of nations without jury rights at all."
What I haven't forgotten is that to your cheering section, on this blog and elsewhere, ANY punishment is "extra punishment" (except when it comes to Jan 6 defendants). And you should be above smearing me, or anyone, like that.
P.S. Have you forgotten that guilt/innocence is for the jury BRD, but that, as a general (but long-standing) matter, sentencing is for the judge by a preponderance?
Posted by: Bill Otis | Apr 19, 2024 12:09:36 AM
Bill, you are throwing so much against the wall here, you make spaghetti blush. But as you try all sorts distractions, the key is that you acknowledge that the guidelines still matter, and matter a lot, to federal sentencing. Consequently, any change to the way the guidelines are calculated matters, and the new guideline rule to exclude acquitted conduct will matter a lot in those cases that involve acquitted conduct.
Commission data suggest that there may be only about a hundred cases annually in which the new acquitted conduct rule is a big deal because so few cases go to trial and even fewer involve split verdicts. But in a system committed to jury trial rights, it seems both fair and sensible that the rules guiding judicial sentencing does not treat acquitted conduct precisely like convicted conduct. Respecting our constitutional text, history and tradition means, as I see it, having sentencing rules that call for judges to treat jury acquittal and convictions differently.
Posted by: Doug B | Apr 19, 2024 9:49:02 AM
Doug --
I appreciate the sincerity of the remarks in your second paragraph, and would ask that consider appreciating the sincerity of the lopsided Supreme Court majority in Watts, which read the same Constitution but adopted a decidedly different conclusion.
Posted by: Bill Otis | Apr 19, 2024 11:56:45 PM
