Proposed Acquitted Conduct Sentencing Guidelines Amendments
Acquitted conduct sentencing is still a hot topic and the Sentencing Commission recently proposed three options to address this practice.
The Sentencing Commission until February 22, 2024, is accepting comments for its 2024 proposed amendments to the Sentencing Guidelines. One proposed amendment addresses the issue of acquitted conduct sentencing. At present there is almost no limit to what sentencing judges may use to justify sentences and in United States v. Watts¹ the Supreme Court found that it does not violate the Double Jeopardy clause of the Fifth Amendment² for sentencing judges to use as relevant conduct facts which were presented to a jury and which the jury failed to find the defendant guilty of beyond a reasonable doubt. Another attempt was made in McClinton v. United States³ to challenge the constitutionality of the practice, this time on the grounds that it violates the Due Process clause of the Fifth Amendment⁴ and the Jury Trial clause of the Sixth Amendment⁵, but after the Sentencing Commission announced its intention to address the issue of acquitted conduct in its Guidelines amendments the Supreme Court, in accordance with the recommendation of the DOJ (the same DOJ that would later oppose these Guidelines amendments claiming that the Sentencing Commission lacked the authority to prohibit the use of acquitted conduct in sentencing⁶), elected to give them a chance to do so before taking it up as a judicial issue.
The practice of acquitted conduct sentencing is both constitutionally and practically problematic. If the Supreme Court decides to grant certiorari to an acquitted conduct case it will be addressing only the issues of constitutionality (at least insofar as the justices are acting as judges and not as de facto legislators), but the Sentencing Commission, or Congress should it decide to pass the Prohibiting Punishment of Acquitted Conduct Act, is free to act in any way which it deems beneficial and is in accordance with federal law. Thus, the Sentencing Commission may amend the Sentencing Guidelines to prohibit acquitted conduct sentencing even if the Supreme Court finds the practice to be constitutional, which it has already done with respect to the double jeopardy and may do so again with respect to the due process.
The primary practical problem with acquitted conduct is that it allows prosecutors to freeroll defendants. Criminal prosecution in the United States is based on the adversarial model which assumes that in a tug-of-war between evenly matched plaintiffs and defendants the side favored by the facts will win (with the defense given a handicap by the beyond a reasonable doubt standard of proof required for conviction in accordance with the principle that it is better for a guilty person to go free than for an innocent person to be punished). The adversarial model does not work when the sides are not evenly matched, and in federal criminal prosecutions defendants are hugely disadvantaged, despite the government having to establish guilt beyond a reasonable doubt when a case goes to trial. The United States Attorney’s Office is better equipped than the Federal Public Defender’s Office; prosecutors have much less to lose than defendants by losing at trial; prosecutors are not subjected to pretrial detention (the modern and only slightly more humane equivalent of thumbscrews) until their resistance to admitting guilt and accepting a plea agreement is broken; and prosecutors have immense power to manipulate the plea negotiation process through selective filing of charges. Prohibition of acquitted conduct sentencing, then, would not put defendants and prosecutors on equal footing but it would restore the balance slightly by tipping the scales toward defendants.
Fair prosecution is beneficial to everyone, not just defendants. The in-prison disciplinary process is demonstrative of what happens when defendants have only farcical due process rights. Here at MDC Los Angeles people have gone to the SHU (Special Housing Unit, i.e. disciplinary segregation, i.e. solitary confinement [but not completely solitary, since you do have a cellmate in the SHU]) for knives being found behind their walls; for coffee and toilet paper testing positive for meth; for getting beaten up; for standing next to the captain while waiting for a legal visit; for telling a female officer that it would not be appropriate to take down the window cover while in the process of “taking a shit”; and for leaving the building during the COVID era. If someone wants to send you to the SHU then you will go to the SHU and there is really nothing that you can do about it (and if you try to challenge your writeup they will leave you in the SHU until you are ready to “take the shot”, i.e. accept responsibility). If the statement “you have nothing to fear if you have done nothing wrong” is ever manifested, even partially, in reality it is only when defendants have some semblance of due process rights and enough leverage to back them up (life is the will to power, spake Friedrich Nietzsche⁷). Furthermore, lack of fairness in prosecution undermines the credibility of convictions and turns culpable defendants into victims. My case is demonstrative of this effect — it involves a deceased person whose untimely death deserves to be the focus of attention, but it is very hard to not think of yourself as a victim when you are facing a murder sentence for an unintended accident that you were not the proximate cause of and that you are being threatened with not because you are the only or most likely suspect but because you are the easiest to convict suspect (the plot of the novel Ben-Hur involves a similar situation in which Judah Ben-Hur is sentenced to be a galley slave after an unfortunate accident involving a loose roof tile is construed as attempted murder of the Roman governor of Judea and at no point considers himself to have been rightly convicted and justly punished).
One of the factors in my decision to plead guilty was the possibility of acquitted conduct sentencing. Even if a jury had found me not guilty of causing death I could still be sentenced to up to 20 years for causing death if the sentencing judge finds this fact to be probably true. This is what happened to Bernardito Carvajal⁸ who was sentenced to 120 months after a jury found him guilty of distribution of fentanyl but not guilty of causing death (a fairly typical sentence for defendants who plead guilty to the lesser offense of simple distribution with the greater offense acknowledged in the factual basis). In such cases acquitted conduct sentencing allows prosecutors to freeroll defendants; while defendants are forced to balance the risk of trial versus pleading guilty, prosecutors risk nothing by forcing a trial because even if they lose on one count they can argue their case again at sentencing and may end up getting the same sentence that they would have gotten following conviction for the greater offense. Prohibition of acquitted conduct sentencing would force prosecutors to engage in a similar risk analysis to defendants, pursuing the greater offense when they believe a conviction to be worth the risk of the defendant being acquitted and facing no punishment for the underlying conduct.
The Sentencing Commission has presented three options for addressing acquitted conduct sentencing in its 2024 amendments. Option 1 would deem acquitted conduct not relevant for determination of the guideline range, although it may still be considered for determination of a sentence within the guideline range or for departing from the guideline range (full prohibition by the Sentencing Commission, as opposed to statutory prohibition by Congress, would likely conflict with 18 U.S.C. § 3661⁹, although the Commission is seeking comment on whether or not these latter considerations should also be prohibited). Option 2 would advise sentencing judges to depart downward when the use of acquitted conduct would have a drastic effect on the sentence. Option 3 would require sentencing judges to use the clear and convincing evidence standard when considering acquitted conduct but would otherwise not alter its usec/sability. Option 3 is qualitatively identical to the status quo and would accomplish almost nothing (the Supreme Court already stated in Watts that the clear and convincing evidence standard ought to be used when acquitted conduct is being used to justify extreme, otherwise substantively unreasonable sentences) while option 2 prescribes an awkward procedure of enhancing a sentence more than is appropriate only to subsequently lower it on grounds that are unspecified and unclear (if the sentencing judge considers the original upward departure to be reasonable then it is not obvious why, how, or how much it ought to be lowered due to it being based on acquitted conduct).
Option 1 is the most restrictive and the most likely to actually address the issues associated with the practice of acquitted conduct sentencing. These issues follow from the extremely large statutorily allowable sentence ranges for some charges, particularly drug charges, and the freedom that sentencing judges have to impose a sentence anywhere within the statutory range of the charge of conviction as established by Apprendi¹⁰ and Alleyne¹¹. The Watts opinion correctly noted that there is no logical inconsistency in allowing sentencing judges to enhance a sentence using facts which it would be allowed to consider but for a jury failing to deem them factual by a stronger standard of proof than is required for sentencing. Even if the issue in Watts had been due process, it is debatable whether or not a modest enhancement to a defendant’s sentence which produces a sentence significantly lower than what a conviction for the greater offense would prescribe would be a due process violation. In my opinion, the argument that the permissibility of lesser punishment following from a weaker standard of proof contradicts due process is less convincing than the argument that a refinding of facts by the sentencing judge after they have been presented to a jury constitutes a double jeopardy violation, and a finding by the Supreme Court to the contrary would likely be, or at least strongly resemble, legislation from the bench (even though I am strongly in favor of total prohibition of acquitted conduct sentencing by Congress). However, there is clearly de facto (though not, at present, de jure) due process violation when a sentence is imposed which is not substantively reasonable and cannot be substantively reasonable but for a conviction for a greater offense. By disallowing the use of acquitted conduct in offense level determination the Sentencing Commission would be effectively restricting the use of acquitted conduct to the region of substantive reasonableness.
Putting aside the fact that the Sentencing Guidelines are only applicable to federal sentences, the proposed amendment may still leave the constitutional issues partly unresolved such that it may still be beneficial for the Supreme Court to address them. A Supreme Court opinion, however, has the potential to drastically change the framework of criminal law which Sentencing Guidelines amendments do not, and a properly reasoned due process prohibition of acquitted conduct sentencing will likely do just that. The current common law whereby sentencing judges have authority to effectively sentence anywhere within the arbitrarily determined statutory bounds contradicts the established separation of powers whereby legislatures define illegal conduct, juries establish guilt, and judges impose individualized sentences which comport with the jury’s findings. Each particular charge can be associated roughly with an expected punishment, and it is the role of the judge to fine-tune the sentence to fit the particular case without straying so far that the association between the sentence and the charge of conviction is lost.
Consider again the charge of distribution resulting in death. A defendant with no criminal history convicted of simple distribution will have a guideline sentence somewhere between 1 and 10 years depending on the drug quantity established by the sentencing judge and a statutory range of 0 to 20 years if the charge of conviction does not exceed a certain quantity (which will depend on the distributed substance). An order of magnitude difference is substantial for sentences which differ on account of judicial factfinding but it seems unlikely that the Supreme Court would deem this a due process violation given that Congress has not defined more fine-grained offenses for juries to choose from. However, when death results there exists not only a separate offense for distribution resulting in death but also several different offenses for homicide. It will sometimes be appropriate for judges to impose moderately more severe sentences when death results from an offense due to above average recklessness on the part of the defendant but to enhance a simple distribution sentence by an order of magnitude is a clear due process violation given that such a sentence is effectively punishing the defendant for murder without a conviction for murder. The charge of murder (in this case, second degree murder) does, in fact, exist, and if the prosecution is seeking a murder sentence then it is proper for a murder charge to be filed such that the requisite facts can be established, or rejected, by a jury.
My preferred option of those presented by the Sentencing Commission is option 1 with an allowance for the use of acquitted conduct sentencing within the guideline range and in departing from this range. This will serve as an immediate solution to this issue while still leaving open the possibilities of full prohibition by Congress and consideration by the Supreme Court of due process and issues of substantive unreasonableness which go deeper than acquitted conduct sentencing. Apprendi and Alleyne were both steps in the right direction but did not go far enough. Due process means that a defendant has the right to know the nature of the accusation against him, including a reasonable expectation of the consequences of conviction, and to have the facts necessary for conviction established or rejected by a jury. It also means that jurors have the right to deny punishment that they believe is unwarranted and to not have their verdict effectively overturned via bootstrapping of a greater sentence to a lesser offense. Mandatory minimums have been criticized for excessively restricting judicial sentencing freedom, but distinct offenses exist for a reason and too much judicial freedom in sentencing risks encroaching on the Fifth Amendment right to due process and the Sixth Amendment right to trial by jury. I am curious to see which option the Sentencing Commission adopts but I would still like to see the Supreme Court take up the Fifth and Sixth Amendment issues presented in McClinton at some point in the future.
1. United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997)
2. Fifth Amendment, Double Jeopardy Clause: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”
3. McClinton v. United States, 143 S. Ct. 2400 (2023)
4. Fifth Amendment, Due Process Clause: “nor be deprived of life, liberty, or property, without due process of law”
5. Sixth Amendment, Jury Trial Clause: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”
6. https://lisa-legalinfo.com/2023/03/13/10933/
7. Nietzsche, Friedrich. Beyond Good and Evil: Prelude to a Philosophy of the Future. C.G. Naumann of Leipzig, 1886.
8. United States v. Carvajal, 85 F. 4th 602 (1st cir. 2023)
9. 18 U.S.C. § 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider, for the purpose of imposing a sentence.”
10. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)
11. Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013)
