USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate

I was only able to listen to some of the 4+ hours of testimony and discussion today about acquitted conduct sentencing at the US Sentencing Commission, which is only on day one of its extended hearings regarding its proposed amendments to the US Sentencing Guidelines.  This USSC hearing page now has the written testimony of all 15 persons who appeared before the Commission to discuss acquitted conduct, and those fascinating written submissions capture much of the diversity and divergence in the views expressed on this long-simmering (long-boiling?) federal sentencing issue. 

As I listened to the public hearing, the testimony and discussion with Commissioners reinforced for me all the delivish details that necessarily arise in trying to define acquitted conduct, and in trying to develop clear sentencing rules concerning when and how such conduct should or should not be considered at sentencing.  Long-time readers know that I have long been troubled by sentence enhancements based on acquitted conduct, though I have also long recognized how challenging it can be to write sound and effective sentencing rules in this space.  Indeed, as the USSC hearing explored many of the delivish details today, it was clear how acquitted conduct’s intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.

And yet, while today’s hearing made acquitted conduct complications ever so salient, it also help remind me that the issue is really just a variation on a criminal process debate well articulated 60 years ago by Herbert Packer in his classic “Two Models of the Criminal Process.”  Prof Packer famously wrote about two criminal process models — that is, “two separate value systems that compete for attention in the operation of the criminal process” — in the form of “the Due Process Model and the Crime Control Model.”  Though perhaps trite and obvious to many, today’s USSC discussion highlighted for me how advocates for limits on acquitted conduct sentencing are often giving voice, in one way or another, to the Due Process Model while defenders of acquitted conduct sentencing are humming a variation on the Crime Control Model tune.

In addition (and perhaps providing just another take on the same point), I was reminded today of my colleague Alan Michaels’ terrific 2003 article on “Trial Rights at Sentencing.”  Though Prof Michaels only looks at Supreme Court jurisprudence regarding defense rights in that article, he usefully describes and summarizes his accouting of SCOTUS rulings this way:

Rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing.  Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant’s favor or primarily protect the defendant’s autonomy — do not apply at sentencing. 

Framed only a bit differently, one might see concerns for sentencing “accuracy” to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct.  But the jury trial right is fundamental to our nation’s vision of Due Process and our commiement to “defendant special protections,” and that’s surely why many are troubled by any judicial sentencing process that functioanlly disregards a jury’s decision to acquit on certain charges.

Of course, Prof Packer stressed his “polarized models” are archtypes that do not capture the “conflicting schemes of values” that so many embrace.  Indeed, I suspect most everyone is eager to pursue both crime control and due process; and yet, a hard topic like acquitted conduct sentencing may require marking a hard choice about which models and values to prioritize.  It will be very interesting to see where the USSC winds up in this amendment cycle.