An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
In this post earlier this month, I suggested that Justice Kennedy might be replaced by a new Justice more inclined to afford criminal defendants stronger Sixth Amendment rights under Apprendi and Blakely. And this subsequent post highlighted that new SCOTUS-nominee Judge Brett Kavanaugh authored an interesting opinion a few years ago that expressed concern about the use acquitted conduct to increase sentences. Against that backdrop, I was interested to see this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh headlined "Sentencing May Change With 2 Kennedy Clerks On High Court." Here are excerpts from the start and end of the commentary:
Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing. In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury. Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades. As it turns out, another former Kennedy clerk, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice’s seat on the court — also shares Justice Gorsuch’s concern. Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the “Kennedy clerks” will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....
Should Judge Kavanaugh be confirmed, we believe it quite likely that, based on his prior jurisprudence, the current manner in which relevant conduct or at least acquitted conduct is used to enhance sentences will soon be determined to be unconstitutional.
Though I certainly hope that new Justices could usher in a big changes to the modern federal sentencing system, I do not share these authors' view that such changes are "quite likely." In particular, finding unconstitutional any use of "uncharged" conduct at sentencing would be a real sea-change for lots of sentencing systems and practice, and I think a number of Justices would be hesitant to take Sixth Amendment doctrines this far. But I still like this constitutional optimism even if I do not fully share it.
A few prior related posts:
- Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
- Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?
- Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
- Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?
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