Inartful dodgers: do our constitutional values suggest there is “no relevant difference … between acquitted conduct and uncharged conduct”?

July 9, 2023

In prior posts in my “inartful dodgers” series (which are linked below), I have mostly bemoaned the cert denial statements in the McClinton case from Justices suggesting the Sentencing Commission should first address acquitted-conduct sentencing issues. Now I want to turn to Justice Alito’s concurrence in the denial of certiorari, where he suggests that there are no acquitted-conduct sentencing issues that need addressing.

To begin, I believe Justice Alito’s statement merits praise for (a) making clear why he voted to deny cert in acquitted conduct cases, and (b) stating that, if cert were granted, “better arguments on both sides of the issue may be presented to us, and nothing that I have written here should be understood as the expression of a firm position on that question.” Unlike his colleagues, Justice Alito does not dodge the acquitted-conduct sentencing issue, and he indicates he would be open to considering “better arguments” on the issue, even though he seems a proponent of “countervailing arguments” against any limits on acquitted-conduct sentencing.

But, though I respect Justice Alito’s decision to address acquitted-conduct sentencing directly, I fear his vision and framing of the issue fails to respect the deep constitutional values associated with jury trials and their place in our justice systems. Justice Alito tips his hand, as I see it, when he states in a footnote that “there is no relevant difference for these purposes between acquitted conduct and uncharged conduct.” This seems to me deeply misguided because, as Justice Scalia put it, “the right of jury trial … is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”

Uncharged conduct has not be formally examined and evaluated by any constitutional actors before its presentation at sentencing; acquitted conduct has been formally reviewed and rejected by a unanimous jury after an adversarial process. In my view, there is a unique and uniquely important constitutional significance to jurors unanimously decide that a defendant is not to be convicted or punished on certain government allegations. It is technically right, as Justice Alito notes, that an acquittal does not prove innocence and may just reflect reasonable doubt as to guilt. But our constitutional values cannot and should not be marginalized via technicalities. To again quote the Court’s work in US v. Booker, interpretation of jury trial rights are not to be driven by “Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.” That substance is inherently undermined if one regards acquitted conduct and uncharged conduct to be of constitutionally comparable significance at sentencing.

Justice Sotomayor’s statement suggested the “woman on the street would be quite taken aback to learn about” acquitted-conduct sentencing. Justice Alito responds by asserting that, “[i]f that is true, it shows only that many people do not understand” the legal technicalities of what jury acquittals actually prove and do not prove. But I think it shows far more than that; it shows that the “woman on the street” understands and cares instinctively about constitutional values reflected by the jury trial right and about respecting more than technicalities in jury decision-making. If only more Justices shared these instincts about juries our constitutional values.

Inartful dodgers series: