So today’s post is about an obscure federal sentencing fact, that allows a federal court to base a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
As you can see from the link, there is case – that has been in litigation for quite some time – and it appears that the SCOTUS is considering taking it, as a ton of preliminary briefs have been filed by the various concerned parties. This is a case to watch because the practice should be banned. For example: drug defendants have often complained about the problems of “ghost dope“.
Even though McClinton doesn’t deal directly with the problem of ghost dope, the SCOTUS might address it and the other troubling aspects of “relevant conduct” in sentencing. As the link explains: relevant conduct can include dismissed charges, uncharged conduct, and even acquitted conduct. Under certain circumstances, relevant conduct may further include conduct of coconspirators, and conduct beyond the offense of conviction.
Here’s hoping the SCOTUS will render relevant conduct unconstitutional. It looks like Gorsuch & Kavanaugh lean that way. But this highlights a greater problem with the “Justice System”, it’s a system that flows with the political winds. And as we saw this year with their “Dobbs” decision, settled law can become unsettled in a day. Given that our population is extremely ignorant of where most of our cherished rights come from (the Warren Court: 1953 – 1969) and that all Courts since have endeavored to erode those rights. Note that the Burger Court (1969 – 1986) gave us Roe; BUT, also gave us the nonsensical “good faith exception” to the exclusionary rule.
The bottom line is: all of the rights you think you have were given to you by the SCOTUS from 1953 until 1980 and the SCOTUS has been slowly limiting them or taking them away ever since… this case could reverse that trend.
UPDATE (August 15, 2023): The SCOTUS punted the issue, arguing that the Sentencing Commission is going to review the issue and “should” outlaw the practice.