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November 1, 2011

Justice Breyer's Watts concurrence and the challenge of better guideline drafting

I made brief mention in class of Justice Stephen Breyer's concurrence in Watts, and I thought it might be useful to quote all of it here as the prelude to an (extra credit) challenge:

I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.

In telling judges in ordinary cases to consider “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.

This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.

Here is the (extra credit) challenge for members of the class: Can/will someone propose in the comments a formal US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted conduct (which may or may not also cover uncharged conduct of the sort at issue in Fitch)? 

(Note:  The US Sentencing Commission has, in fact, never formally proposed an "acquitted conduct" provision in response to Watts.)

In addition to being eager to see student efforts to draft a provision of the US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted (and/or uncharged) conduct, I wonder if folks think that, now that Booker has made the guidelines advisory, the "problem" in Watts is now better (or worse).

November 1, 2011 in Class activities, Guideline sentencing systems, Offense Conduct, Supreme Court rulings, Who decides | Permalink


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With regard to acquitted charges factoring into the sentencing decision, does the judge ever poll the jury to determine why there was an acquittal? I know we talked in class about how, objectively, the charge could have been proved beyond a reasonable doubt, but that jury nullification (race-based or otherwise), etc., may have resulted in the acquittal. I personally would feel more comfortable with a judge using acquitted conduct as a factor if it could be shown that the jury was at least somewhat/partially convinced of the defendant's guilt.

Posted by: Heather Williams | Nov 3, 2011 11:45:11 AM

Here's a shot:

In USSG, § 1B1.3(a)(1) insert after (B), (C) which shall read:

"Any statutorily defined conduct for which a jury has acquited the defendant shall not be considered to fall within the applicable conduct described in subdivision (1)(A) and (1)(B), and can therefore not be used in the calculation of the base offense level or for the purpose of any upward adjustment."

Posted by: Kevin S | Nov 3, 2011 12:40:10 PM

OK here goes. To be installed as a section under 5K2.0 "Departures based on circumstances of a kind not adequately taken into consideration" as part (5) and a similar provision under 1B1.3 "Relevant Conduct (factors that determine guideline range)":

(5) Circumstances for which departure shall not be warranted

In deciding whether to depart from the recommended sentence under the guidelines, a judge may not consider conduct for which the defendant was acquitted by a jury in any state or federal court and no retrial was granted. Such conduct will include instances where the jury declined to convict on a charge, or made a special finding of fact that the defendant did not commit an act. The judge shall not supplant the fact-finding role of the jury in determining whether defendant committed an act regardless of a difference in burden of proof.

Posted by: Colin P | Nov 3, 2011 1:01:06 PM

My initial reaction to Fitch and Watts is that the type of sentence at issue in Fitch - based on uncharged conduct, rather than acquitted conduct - is even more objectionable than that at issue in Watts. With conduct that is charged but does not result in a conviction, there is at least the strong implication that the prosecutor believes he or she has enough evidence of that conduct to prove guilt beyond a reasonable doubt. To me, the fact that certain "relevant" conduct is not charged as its own offense indicates that the prosecutor has little confidence in the strength of his or her case with regard to that conduct. Prosecutors have an ethical obligation to refrain from bringing charges they do not believe could be proven beyond a reasonable doubt at trial. I don't believe there's a comparable ethical obligation to refrain from making only marginally-supported claims at sentencing...

In any case, my proposed anti-Watts rule would probably be something like this:

"In considering relevant conduct pursuant to subsection (a)(2), the court shall not consider, either as a basis for enhancement or departure, conduct which was subsumed within one or more elements of an offense for which the defendant was charged and acquitted. . . . For the purposes of this subsection, a dismissal occurring after the commencement of the government's case-in-chief shall be construed as an acquittal."

Posted by: Adam Young | Nov 3, 2011 2:02:04 PM

This would be my version:

Judges shall not consider a defendant’s prior conduct when it is associated with behavior from a prior acquittal. The only exception is if the acquittal was the result of a bribe, either of the judge or juror(s). The rationale stems from two notions. The first being the longstanding rule of double jeopardy, derived from the Fifth Amendment, in that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The second falls in line with retributivist justice in that a defendant should be held responsible for the offenses he/she committed and be punished proportionally. An enhancement sought based on conduct from a prior acquittal explicitly goes against this notion, and therefore shall not be considered for offenses in which the defendant was found not guilty in past proceedings.

Posted by: Isabella | Nov 3, 2011 2:04:02 PM

I'll try (and probably fail) to take it a step further and include Fitch.

"A judge may not consider the following in determining whether an upward adjustment is warranted:
(a) Any conduct for which the defendant has been acquitted by a judge or jury in any state or federal court, or;
(b) Any conduct for which the defendant, either in a separate count or more severe count, may have been charged but was not."

In looking at this, it seems like I took away all of the judge's ability to look at anything other than the convicted conduct, which I really don't think the sentencing commission wants to do. But in order to take out uncharged conduct it seems to me like this would be inevitable.

As for the Watts problem with Booker in mind, I think the problem is probably no different. Judges can still look at acquitted conduct if they want and base their sentences on that. The difference would really be if one of our amendments was included and the judges could just disregard it because of the advisory nature of the guidelines.

Posted by: Sean B. | Nov 3, 2011 2:15:12 PM

In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.

CHANGE the text to:
In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, any information concerning the background, character and conduct of the defendant, except--
(a) if the defendant has been acquitted of a charge by a judge or jury, this conduct cannot be considered as a reason to increase the defendant's sentence, or
(b) if otherwise prohibited by law.

Posted by: Sally S. | Nov 3, 2011 2:17:16 PM

(c) For purposes of determining relevant conduct in the above paragraphs, the court shall consider only offenses for which defendant has been both charged and convicted.

Posted by: Marco T. | Nov 3, 2011 2:55:51 PM

Can't depart from the guidelines based upon certain conduct if:
1. The defendant was charged and acquitted of an offense directly related to that conduct and the judge is not convinced beyond a reasonable doubt of the defendant's guilt


2. The defendant was not charged with an offense directly related to that conduct and based on factual record the government had at least a "reasonable chance" of succeeding in the prosecution (sort of like a 25% burden of proof similar to injunctions)

So, I probably messed this up but what I'm going for is a system that requires the gov't to charge and prove all offenses relevant to the sentence + fix Watt in provision (1) unless the judge is actually certain of guilt + fix Fitch in provision (2) by requiring gov't to charge and prove obvious offenses given the facts.

My immediate impression of my response is that its so over-broad that the AG will be charging every drug possessor with "18 U.C.A. 1 through 1,000,000" and applying the lower end standard would suck too...fail

Posted by: JT | Nov 4, 2011 8:23:14 PM

I may be repeating what others have posted...but I figured I'd throw out a suggestion before reviewing everyone else's.

A sub-section can be added to §1B1.3 stating specifically that all conduct for which a defendant has been acquitted may not be ground for determining the Guideline range. Maybe this is too simplistic?

Posted by: Harrison Markel | Nov 10, 2011 11:38:43 AM

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