We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
IS 13 A LUCKY NUMBER FOR ACQUITTED CONDUCT?
For the past five months, we’ve been watching McClinton v. United States, a petition in front of the Supreme Court challenging the constitutionality of acquitted-conduct sentencing.
You’d think that fact that a jury has acquitted a defendant of criminal conduct should prevent a court from taking that conduct into account at sentencing, but since United States v. Watts in 1997, as long as a defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for conduct for which a jury found the defendant not guilty.
Some state courts have held acquitted conduct sentencing to be unconstitutional, and some former Supreme Court Justices – Antonin Scalia, Ruth Bader Ginsburg – and current Justice Clarence Thomas have condemned the practice.
McClinton and four similar petitions were relisted once in January. “Relisting” means the justices considered the petitions at a weekly conference and then deferred a decision on whether to grant review (certiorari) to the next conference. A “relist” suggests that one or several Justices support granting the petitions.
In late January, the Dept of Justice got the Supreme Court to place a hold on McClinton and four other petitions by essentially assuring SCOTUS that proposed Guidelines amendments rolled out by the Sentencing Commission on January 12th – which included a proposal to ban acquitted conduct sentencing – were going to fix the problem. DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”
You may recall that after selling the Supreme Court on tabling the acquitted conduct petitions, DOJ filed an unctuous set of comments with the Sentencing Commission a few weeks later arguing the USSC lacked authority to place restrictions on acquitted-conduct sentencing because 18 USC § 3661 bars restricting judges as to the information about the background and conduct of defendants that they can consider.
(As an aside, I note that McClinton’s counsel promptly informed the Supreme Court about DOJ’s gamesmanship in trying to torpedo McClinton because the Sentencing Commission would fix the problem at the same time it was whining to USSC that the agency lacked the legal right to do so).
The Sentencing Commission decided on April 5 not to act on acquitted conduct this year, although it said it would try to take the issue up next year. Now, maybe because of DOJ’s duplicity, the Supreme Court relisted those original five cases for a second time, to be discussed at last Thursday’s conference. And now, the five pending petitions have been joined by an additional eight cases raising the same or similar issues.
As John Elwood put it in SCOTUSBlog last week, “We’ll find out soon how lucky these 13 petitions are.” ‘Soon’ could be this morning at 9:30 am Eastern, when the results of last week’s conference are announced.
McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)
SCOTUSBlog, Acquitted-conduct sentencing returns (May 24, 2023)
Sentencing Law and Policy, Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS (May 24, 2023)
– Thomas L. Root