Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address
In the Declaration of Independence, signed 247 years ago today, the Founder of this Nation complained of a “long train of abuses and usurpations” by “the present King of Great Britain,” which included “depriving us in many cases, of the benefits of Trial by Jury.” And the jury trial right was so important to the Framers that it was twice placed in our Constitution. Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.” The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” So, the jury trial right has been considered so essential to a just American system of justice that it helped inspire a revolution and was doubly codified in our Constitution.
The Supreme Court has recognized its role in protecting the constitutional jury trial right, recognizing that “the jury right could be lost not only by gross denial, but by erosion,” Jones v. United States, 526 U.S. 227, 248 (1999), and striking down practices that amount to an “unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Apprendi v. New Jersey, 530 U.S. 466, 497 (2000). Court protection of the jury trial right is critical, as Justice Scalia explained for the Court, because it is a “fundamental reservation of power in our constitutional structure” and because the “judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.” Blakely v. Washington, 542 U.S. 296, 305-06 (2004).
Against this backdrop, it is quite obvious that objections to the use of acquitted conduct at sentencing raise constitutional issues. The cert petition filed by Dayonta McClinton makes this clear in its Question Presented: “Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.” That petition notes, inter alia, that some state courts have found due process rights, as well as the jury trial rights, violated by acquitted-conduct sentencing. These rights are, as the Court put it in Apprendi, “constitutional protections of surpassing importance” because they define restraints on state powers and processes to impose criminal punishments.
These constitutional realities and stakes, properly understood, reveal the limited significance of the prospect of the US Sentencing Commission (or even Congress) someday promulgating guidelines concerning the use of acquitted conduct at federal sentencing. How the USSC (or Congress) might choose to regulate sentencing law and process would not and could not resolve the array of constitutional concerns that the Supreme Court was asked to consider in McClinton. Indeed, the USSC and Congress cannot even know the full reach and limits of their powers to set forth rules concerning acquitted-conduct sentencing with constitutional matters unresolved. And, of course, the USSC and and Congress can only speak to the use of acquitted conduct at federal sentencing, even though the vast majority of criminal cases (over 90%) are sentenced in state courts (which also struggle with constitutional uncertainty in this arena).
This is one of many reasons I found so curious aspects of the statements of Justice Sotomayor and of Justice Kavanaugh (joined by Justices Gorsuch and Barrett) respecting the denial of certiorari in McClinton. The statements suggested these Justices voted against cert because the Sentencing Commission was considering new guidelines for acquitted-conduct sentencing. For example, Justice Kavanaugh states that 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.” But he does not explain why it is “appropriate” to leave unresolved a constitutional issue while a federal agency might address a policy issue. Most fundamentally, the Justices’ statements referencing the USSC does not account in any way for how any “Sentencing Commission determination” would have any impact on the Court’s consideration of “constitutional protections of surpassing importance.”
I fully recognize that the Fifth and Sixth Amendment issues surrounding acquitted-conduct sentencing present challenging constitutional issues. But dodging those issues by trying, in essence, to punt them to an agency that can only make policy determinations is not just “inartful,” but really an abdication of constitutional responsibility by Supreme Court Justices. On a day we celebrate throwing off “abuses and usurpations” that included deprivations of “the benefits of Trial by Jury,” I hope that citizens of this country will keep asking the Justices to live up to their responsibility to fully adumbrate just what those “benefits” are in modern American.
Inartful dodgers series: