Acquitted-conduct sentencing and “offended observer” standing


sketch of numerous cameras lined up outside the supreme court

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

Last week’s relist-palooza turned into a grant-palooza as the Supreme Court granted review of 11 relisted petitions, apparently filling the court’s April argument calendar and nearly clearing out all of last week’s relists. Just one case remains from last week as the court has relisted it a second time, and a number of cases that raise the same issue as just-granted cases will be held pending their outcome.

This week we have a total of six newly relisted cases raising two main issues.

Five of the relists involve the controversial practice of sentencing criminal defendants based on offenses that juries acquitted them of. (Disclosure: I represent the petitioner in one of those five cases.) Back in 1997’s United States v. Watts, a divided Supreme Court summarily reversed the judgment of the U.S. Court of Appeals for the 9th Circuit in two cases that had invalidated sentencing enhancements that were based on crimes of which the jury had acquitted the defendants. Because the court of appeals had relied on the Fifth Amendment’s double jeopardy clause to invalidate the enhancements, the majority stated that its holding was “based on erroneous views of our double jeopardy jurisprudence,” because “sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction.” In a later decision, the Supreme Court described Watts as “present[ing] a very narrow question regarding the interaction of the Sentencing Guidelines and the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument.” But because of broad language in Watts, essentially every federal court of appeals and many state courts have read the opinion to have conclusively resolved the constitutionality of acquitted-conduct sentencing.

Almost two decades after the summary reversal in Watts, after a string of landmark criminal procedure holdings emphasizing the constitutional centrality of jury factfinding in criminal sentencing, Justice Antonin Scalia, joined by Justices Ruth Bader Ginsburg and Clarence Thomas, filed an opinion dissenting from denial of certiorari in a case challenging acquitted-conduct sentencing. Citing the court’s recent precedents construing the Sixth Amendment, they wrote that “[a]ny fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, and must be found by a jury, not a judge.” But they noted that “the Courts of Appeals have uniformly taken our continuing silence” after Watts “to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range.” The dissenters protested that “[t]his has gone on long enough,” and urged the court to “grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment.”

Five newly relisted petitions argue that Watts should be overruled or limited and that the due process clause of the Fifth Amendment and the jury-trial guarantee of the Sixth Amendment prohibit imposing sentencing enhancements on criminal defendants based on conduct of which the jury acquitted them: McClinton v. United States, Luczak v. United States, Shaw v. United States, Karr v. United States, and Bullock v. United States. In McClinton v. United States, petitioner Dayonta McClinton (whom I represent) is supported by six amicus briefs, including one filed by 17 former federal judges who argue that acquitted-conduct sentencing is both unconstitutional and unjust. Although conceding that some state supreme courts have held that acquitted-conduct sentencing is unconstitutional, the government argues that the split does not warrant review and that the petitions suffer from a variety of vehicle problems.

The court has denied review on this issue a number of times in the past. But when the United States tried to waive its right to file a response in these cases, the Supreme Court ordered it to respond. We’ll see whether the retirement of Justice Stephen Breyer (a champion of judicial factfinding at sentencing and a member of the original U.S. Sentencing Commission) and the arrival of Justice Ketanji Brown Jackson (a former federal public defender) has changed the vote count.

Our next (and last) case is City of Ocala, Florida v. Rojas. The City of Ocala, in response to a shooting, encouraged its residents to attend a prayer vigil. Art Rojas and Lucinda Hale are city residents and members of the American Humanist Association. Hale had a child who was murdered. She and Rojas learned of the event and wished to attend because of their concerns about violence, but both were concerned that the event would be overtly religious. They attended anyway, saying that the city’s police chief personally invited them to come. They allege that the event contained religious elements that offended them and made them feel excluded, and they sued in federal court, asserting a violation of the First Amendment’s establishment clause. Both the district court and the U.S. Court of Appeals for the 11th Circuit held that Hale had standing to sue.

The city has sought certiorari, arguing that “personal objection or feeling offense” is not “injury-in-fact” sufficient to establish standing under Article III of the Constitution. The city contends that Rojas and Hale’s claim is “especially weak” because they voluntarily chose to attend and were not required to be present. Rojas and Hale argue that there is no disagreement among the lower courts on the issue and that this is a bad vehicle for the court to address standing because they say the case has unusual facts (for example, their claim that the police chief personally invited both to attend).

We’ll find out soon what the Supreme Court thinks about all of these relists. If the cases are granted, they will likely be the first grants of upcoming October Term 2023.

Until next time, stay safe!

New Relists 

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 conference) 

Luczak v. United States, 21-8190
Issue: Whether this Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 conference)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 conference)

City of Ocala, Florida v. Rojas, 22-278
Issue: Whether psychic or emotional offense allegedly caused by observation of religious messages is an injury sufficient to confer standing under Article III of the Constitution, including where the offended party deliberately seeks out the exposure in question.
(relisted after the Jan. 13 conference)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; (2) Whether it violated the Due Process Clause of the Fifth Amendment for the district court to sentence Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 conference)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the Defendant was previously acquitted.
(relisted after the Jan. 13 conference)

Returning Relist

Toth v. United States, 22-177
Issue: Whether civil penalties imposed under 31 U.S.C. § 5321(a)(5)(C)-(D) — penalties that are avowedly deterrent and non-compensatory — are subject to the Eighth Amendment’s excessive fines clause.
(relisted after the Jan. 6 and Jan 13 conferences)

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