Published on: Tuesday, April 4, 2023

People who fight multicount indictments at trial lose even if they beat most of the charges—all it takes is one conviction to face a sentence that reflects every count charged. But that may be starting to change (article available here).

The US Sentencing Commission is expected on Wednesday to vote on an amendment that would eliminate acquitted conduct from the definition of relevant conduct for purposes of calculating the guidelines range.

Judges would still be able to consider acquitted conduct that was proven beyond a reasonable doubt or admitted by the defendant in plea proceedings or a colloquy.

The amendment has wide support from the defense bar, current and former federal judges, and three US Senators, although some say it won’t completely solve the problem.

In its opposition, the Department of Justice emphasized the difficulty judges may have in determining what conduct they can or can’t consider.

But the practice has been long criticized—including by some justices—for violating Fifth Amendment due process and the Sixth Amendment right to a jury trial.

In a dissent to a denial of a petition for certiorari Justice Antonin Scalia wrote that the practice had “gone on long enough.” Joined by Justices Clarence Thomas and Ruth Bader Ginsberg, Scalia said the court should either “put an end to the unbroken string of cases disregarding the Sixth Amendment,” or “eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”

Justices Neil M. Gorsuch and Brett M. Kavanaugh have also criticized acquitted conduct sentencing.