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SAMARITAN ALERT- U.S. SENTENCING COMMISSION HOLDS HEARIING ON ACQUITTED CONDUCT

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC 

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179



The Sentencing Commission hearing lasted some of the 4+ hours of testimony and discussion about acquitted conduct which is day one of its extended hearings regarding its proposed amendments to the U.S. Sentencing Guidelines.  This hearing had the written testimony of the15 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. 


The testimony and discussion with the Commissioners reinforced all the 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. Indeed, as the hearing explored many of the 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 U.S. Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.


While today's hearing made acquitted conduct complications ever so salient, it also reminded 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."  Professor 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 discussion highlighted 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.


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 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 commitment to "defendant special protections," and that's surely why many are troubled by any judicial sentencing process that functionally disregards a jury's decision to acquit on certain charges.


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


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