US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations

At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations.  The Commission’s vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive.  The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC’s data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.

A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.

UPDATE:  Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading “Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines”:

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country.  Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.  The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.  And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

These and all other amendments passed by the Commission today will be posted here.  The Commission will deliver amendments to Congress by May 1, 2024.  If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.