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Could the U.S. Sentencing Commission be considering removing acquitted conduct from 1B1.3?

January 7, 2009

The Sentencing Law & Policy Blawg reports that the U.S. Sentencing Commission announced a public meeting for January 13, 2009, with possible amendments to the Guidelines on the agenda. It also links to a most interesting interview with outgoing U.S. Sentencing Commissioner John Steer published last September in NACDL’s The Champion. Of particular interest to the Commission’s potential consideration of removing acquitted conduct from 1B1.3 is the following quote:

[Outgoing Commissioner John Steer:] That said, I think some changes to Section 1B1.3, Factors that Determine the Guidelines Range, are in order. The first change I would make, but not the most important, is to exclude “acquitted conduct” from this guideline, and move it to 5K2.21 (Dismissed and Uncharged Conduct) as a judge-discretionary factor. There are two reasons I now recommend this change. First, the inclusion of acquitted conduct in determining the guideline range under 1B1.3 is relatively rare and, in practice, entirely judge-discretionary. The Justice Department will defend (and successfully has defended, even post-Booker) a judge’s decision to include acquitted conduct, but to the best of my knowledge, DOJ never appeals a judicial decision to exclude it. The relevant conduct guideline is supposed to produce a mandatory, relatively consistent application of guideline factors to the facts, rather than an application that varies from judge to judge according to the jurist’s thinking regarding use of acquitted conduct. After all, 18 U.S.C. § 3742 and post-Booker case law say that both parties continue to have an enforceable right to a correct application of the sentencing guidelines, before the curtain opens on the enlarged stage of judicial discretion. I would move the consideration of acquitted conduct to that second stage, where I believe it more properly belongs.

The second reason I would exclude acquitted conduct from 1B1.3 relates to the whole gamut of policy objections to its mandatory inclusion. The federal guideline system is alone among sentencing reform efforts in using acquitted conduct to construct the guideline range. No state guideline system uses it. Let’s lose it from 1B1.3.

The Champion, Sept. 2008.

And for those who have questioned why sentences for white collar crimes are not as severe as other crimes, the outgoing Commissioner had this to say:

[Outgoing Commissioner John Steer:] The candidates most likely not to recidivate are typically white collar offenders. The guidelines initially were designed to provide short, sharp sentences of imprisonment for those offenders in order to further the goal of deterrence. I have no doubt that the greater certainty of going to prison, even for a relatively short period, can help deter antitrust, tax evasion, securities fraud, and many other white collar offenses. I think our punishment system can be principally faulted for imposing wastefully long terms of incarceration for many offenders.

Id. (Emphasis added.)

As is noted by the venerated authors at Sentencing Law & Policy, it might be presumptuous to think acquitted conduct is on the table, but it is a welcome change to imagine that it might be.

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