By Connor Gallagher
Senator Orrin Hatch, the longest-serving member of the Senate Judiciary Committee, wrote an op-ed for SCOTUSBlog in late August to convince readers that then-Judge Brett Kavanaugh should be confirmed to the Supreme Court.  In particular, Senator Hatch cited now-Justice Kavanaugh’s repeated commitment to reforming the acquitted conduct doctrine, which permits trial judges, during the sentencing of a criminal defendant, to consider conduct for which the defendant was acquitted by the jury. 
It should not come as a surprise to the reader that this practice is widely panned by lawyers and laypersons alike. That being said, the acquitted conduct doctrine is nothing new. It originates in the 1984 creation of the United States Sentencing Commission, which subsequently established mandatory sentencing guidelines for federal courts.  (These guidelines are still in use today, though they have been amended innumerable times and are nowadays advisory, rather than mandatory. ) These guidelines permit judges to consider all “relevant conduct” in sentencing decisions, explicitly advising its users that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable [sentencing]…”  Therefore, so long as conduct is more likely than not to have occured––that is, it has been proven by a preponderance of the evidence––judges may consider it during sentencing.
By happenstance, Kavanaugh found the issue before him surprisingly often in his role as Circuit Judge for the D.C. Circuit, and did not hesitate to voice his concerns while writing opinions. In 2008, he wrote that he “understand[s] why defendants find [the practice] unfair” and even went so far as to directly sympathize with the testimony of the defendant, Tarik Settles, who questioned why “I should get punished for something that the jury and my peers, they found me not guilty.”  In 2015, Kavanaugh went even further:
Despite his unbridled criticism for acquitted conduct consideration, Kavanaugh has always sided with the sentencing judge on the matter, citing Supreme Court precedent. For example, in the 2008 case, Kavanaugh explained that sentencing decisions are only reviewed under the abuse of discretion standard of review, and that the Supreme Court “has never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” [6, 8].
Indeed, the Supreme Court continues to refrain from reversing its long-standing position that acquitted conduct proven by a preponderance of the evidence is fair game. A high-profile case, Jones v. United States (for which Kavanaugh was yet again a presiding judge!), was denied certiorari in 2014, much to the exasperation of criminal justice reform advocates. The three defendants in the case were convicted of “distributing very small amounts of crack cocaine” but acquitted of conspiracy to distribute.  However, the sentencing judge found by a preponderance of the evidence that they had in fact engaged in the conspiracy and subsequently prolonged their sentences. Ostensibly, the case was only one vote short from being reviewed, as Justices Scalia, Thomas, and Ginsburg dissented from the denial of certiorari.
Kavanaugh’s reluctance to let his personal distaste for the practice affect his adherence to this entrenched Supreme Court precedent earned him gushing praise from Senator Hatch, who lauded Kavanaugh’s decision to “prudently decline to step outside of his constitutional role.”  I am in a less complimentary mood. Countless examples in which loyalty to precedent leads to perverse outcomes plague the history of the American judiciary.
We must ask ourselves whether a highly-educated, experienced, Senate-approved federal circuit judge should possess the authority to rectify what he repeatedly admits is a manifestly unjust and constitutionally dubious standard, even when the Supreme Court has said otherwise. It is not as if Supreme Court justices have a monopoly on constitutional comprehension. By issuing a judgment contrary to precedent, Kavanaugh could have forced the Supreme Court’s hand by compelling it to either double-down on its doctrine or revise its previous rulings.
In his defense, a number of institutional obstacles stood in his way. Persuading at least one of his panel colleagues to similarly ignore higher-court precedent would be difficult in and of itself, without even mentioning the Jones denial. Quite frankly, it is shocking that justices with such disparate worldviews as Scalia and Ginsburg could agree on a case and not convince at least one other justice to hear it. This would dissuade even the bravest of judges from rebelling against precedent.
In any event, the acquitted conduct doctrine must go. Fortunately, there are indications that the Supreme Court may be ready to take action; with Kavanaugh confirmed, Justices Thomas and Ginsburg continuing their terms, and Trump-appointee Neil Gorsuch on record questioning the practice, there appears to be the needed four votes to take up a potential case.  Legislative options do also remain. Senator Hatch claims in his op-ed that he “plan[s] to soon introduce the Acquitted Conduct Sentencing Reform Act,” but as Hatch heads for the exits this January, a Google search for the proposed law’s name yields only copies of his SCOTUSBlog piece.  As always, criminal justice reform remains glacial in pace.
1. Orrin Hatch, “Judge Kavanaugh’s Fight for Stronger Jury Rights.” SCOTUSBlog, Aug. 31, 2018. http://www.scotusblog.com/2018/08/judge-kavanaughs-fight-for-stronger-jury-rights/.
3. “About and Mission.” United States Sentencing Commission. https://www.ussc.gov/about-page.
4. Michael Foster, “Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change.” Congressional Research Service, Aug. 24, 2018. https://fas.org/sgp/crs/misc/LSB10191.pdf.
5. United States Sentencing Commission Guidelines Manual 2016, Chapter 1. https://www.ussc.gov/guidelines/2016-guidelines-manual/2016-chapter-1#NaN.
6. United States v. Settles, 530 F. 3d 920 (2008). https://www.courtlistener.com/opinion/187171/united-states-v-settles/.
7. United States v. Bell (2015), Kavanaugh concurrence in the denial of rehearing en banc. https://www.cadc.uscourts.gov/internet/opinions.nsf/E8D5121C5DAA4A6085257F23006EDF3B/%24file/08-3037-1590097.pdf.
8. United States v. Booker, 543 U.S. 220, Stevens majority opinion, at 8. https://www.law.cornell.edu/supct/pdf/04-104P.ZO.
9. Jones v. United States, Scalia dissent from denial of certiorari. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Jones_denial.pdf.
10. Ibid., at 1.
11. Ibid., at 4.
12. Ibid., at 1.
Photo Credit: Wikimedia Commons: Office of Senator Orrin Hatch https://commons.wikimedia.org/wiki/File:Orrin_Hatch_and_Brett_Kavanaugh.jpg
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.