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SCOTUS KICKS ACQUITTED CONDUCT CAN DOWN THE ROAD

It seems appropriate during this Independence Day holiday to recall the musical 1776, especially where the character John Adams complained that the Continental Congress “piddled” and “twiddled” without ever solving anything.

The delegates gathered in “foul, fetid, fuming, foggy, filthy Philadelphia” had nothing on the Supreme Court of the United States. After relisting, tabling, untabling and relisting (again and again) over five months, the Court last Friday finally denied review to the 13 pending petitions for certiorari raising the constitutionality of acquitted conduct sentencing.

Led by McClinton v. United States, the cases challenged the constitutionality of acquitted conduct sentencing, loosely defined as giving defendants “additional prison time for crimes that juries found they didn’t commit.”

In late January, the Dept. of Justice got the Supreme Court to place a hold on McClinton, promising SCOTUS that the Guidelines amendments proposed by the Sentencing Commission would fix the acquitted conduct sentencing problem. Then, DOJ showed up at the Sentencing Commission to tell it that it lacked the power to make the acquitted conduct sentencing change. When the Commission rolled out the amendments in April, it deferred action on acquitted conduct sentencing until next year.

The Supreme Court then again took up McClinton but continued to relist the petition from week to week. Relisting the petition rather than granting or denying it suggested that several Justices strongly supported granting certiorari and were trying to swing the minimum four votes needed to qualify the issue for full review.

Relisting cannot last forever. At last week’s “cleanup” conference, held at the end of every term, SCOTUS denied review to McClinton and its related petitions for certiorari. Uncharacteristically for such matters, the McClinton certiorari denial generated opinions from no fewer than five Justices. Justice Sotomayor warned that “the Court’s denial of certiorari today should not be misinterpreted. The Sentencing Commission… has announced that it will resolve questions around acquitted-conduct sentencing in the coming year. If the Commission does not act expeditiously or chooses not to act, however, this Court may need to take up the constitutional issues presented.”

Justices Kavanaugh, Gorsuch and Barrett, echoed Sotomayor: “The use of acquitted conduct to alter a defendant’s Sentencing Guidelines range raises important questions. But the Sentencing Commission is currently considering the issue. It is appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.”

Justice Alito noted that he concurred with the denial of certiorari, but staked out his position in a 6-page opinion: “[B]ecause my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.”

Ohio State University law professor Doug Berman – who filed an amicus brief supporting McClinton – wrote in his Sentencing Policy and the Law blog that “I am disappointed, but not all that surprised, that the Justices keep being content to kick this ugly-but-challenging acquitted-conduct can down the road.”

McClinton v. United States, Case No 21-1557, 2023 US LEXIS 2796 (June 30, 2023)

Sentencing Law and Policy, In final order list of Term, Supreme Court grants cert on big new Second Amendment case and denies/punts cert on acquitted conduct cases (June 30, 2023)

– Thomas L. Root