The Supreme Court has relisted five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are.
Lots of you have asked me about what’s going on with judges using acquitted conduct to enhance federal sentences. At the moment, it’s still legal for a judge to do this. If you don’t know what this means, let me explain. It’s long been accepted that federal judges can consider anything they want when crafting a sentence for someone. This usually includes the person’s background, their showing of remorse for their offense, and all sorts of other things outside the offense conduct itself. But this also includes offense conduct involved in charges that were either dropped or where the jury (or court) acquitted the person — that is, found the person had not committed the crime.
Is this even legal or constitutional? For years, the issue has been talked about but nothing has really been done about it. Politicians have used it to get some attention on themselves, but not a single one has done anything about it. Now the Supreme Court is getting involved … maybe. We all know how that goes with the Court. But they’ve relisted not one but THIRTEEN cases dealing with acquitted conduct used in sentencing. The Court relisting a case doesn’t mean it has agreed to actually HEAR the case, but it does show more than a little interest in the issue. Some cases might be relisted several times before they get heard (or dropped). So, don’t take this as any kind of sure sign the Court is going to do anything right now.
But it’s still a good sign. Some scholars have made excellent arguments that using acquitted conduct at sentencing is clearly unconstitutional. Conservative federal judges, though, have continuously dismissed these claims. Maybe the insistent push by these scholars (and others) about the legitimacy of this practice has finally pushed some buttons. We’ll see what happens in the Supreme Court’s next term, because this one is about to expire before they go on summer break. We might hear more from the Court toward the end of the year. Here’s a recent post on SCOTUSblog.com on the topic:
Acquitted-conduct sentencing returns
By John Elwood
on May 24, 2023 at 2:02 pm
Back in January, we noted that the Supreme Court had relisted five petitions challenging the constitutionality of the controversial practice of acquitted-conduct sentencing. (Disclosure: I represent the petitioner in one of those cases.) Under it, the fact that a jury has acquitted a defendant of criminal conduct doesn’t end the risk that he or she will be punished for that conduct; so long as the defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for the conduct of which the person was acquitted. In 1997’s United States v. Watts, the Supreme Court in a summary per curiam opinion held that such enhancements do not violate the double jeopardy clause. Largely based on Watts, every federal court of appeals has rejected challenges brought under the Fifth Amendment due process clause and the Sixth Amendment’s jury trial guarantee. But some state courts have held the practice is unconstitutional, and a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, have criticized the practice.
After that single January relist, the court held those five cases for several months, apparently waiting to see whether the United States Sentencing Commission would act on a proposal that would have placed modest limits on the ability of federal sentencing judges to enhance sentences based on acquitted conduct. The Sentencing Commission recently decided not to act on that proposal this year, although it intends to try again next year. Some of the challengers argue that the Supreme Court should not wait for the Commission to act, because its proposals place only minor restrictions on the practice, and most acquitted-conduct sentences are imposed in state courts beyond the reach of the Commission. Moreover, the challengers note, the federal government argues that the Commission lacks authority to place restrictions on acquitted-conduct sentencing, because 18 U.S.C. § 3661 bars the imposition of restrictions on the information about the background and conduct of defendants that courts can consider.