Were some Supreme Court justices out of date in their statements last week on the issue of "acquitted conduct" (sentences imposed partly on the basis of actions for which defendants were acquitted)? So suggests Ohio State University law Prof. Douglas Berman in his Sentencing Law and Policy blog. Justices Sonia Sotomayor, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett voted last week against the high court's considering the issue, saying they were awaiting advice from the U.S. Sentencing Commission. Berman notes that only the justices can address constitutional questions related to acquitted-conduct sentencing, so the commission could not resolve the issues. Sotomayor said, "The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year." Kavanaugh said the panel "is currently considering the issue."
Berman said the commission actually decided in April not to address acquitted-conduct sentencing in its 2023 amendment cycle. The commission released its proposed priorities in June for the 2024 amendment cycle, not mentioning acquitted conduct issues. Berman asks, "if these were the views and votes of the Justices many months ago, why did they sit on these cases for months on end while not bothering to update their statements? Back in 2014, Justice Antonin Scalia joined by Justices Ruth Bader Ginsburg and Clarence Thomas complained that acquitted-conduct sentencing had "gone on long enough" without being squarely address by the Justices. Berman says, "With another decade of these matters unresolved, resolution of these issues in all quarters cannot come soon enough."