It’s a race to see who will remove the dreadful doctrine of acquitted conduct at sentencing - the U.S. Sentencing Commission or the Supreme Court. I’ll get into the specifics. But first, a history lesson.

Say goodbye to the erroneous practice of the use of “acquitted conduct” in federal sentencing.

Back in 1997 the Supreme Court decided United States v. Watts which reversed the judgement of the 9th Circuit in two cases that invalidated sentencing enhancements that for acquitted conduct. The 9th Circuit relied on the double jeopardy clause to invalidate the enhancements but SCOTUS rejected this approach because sentencing guidelines do not apply additional statutory exposure but rather elucidate a judge on where an offender should fit within the statutory maximum.

This is all true- but it doesn’t make it right.

Understandably, the Watts decision was cited by district courts as permitting sentencing enhancement based on acquitted conduct. This was a mistake. Watts was a very narrow holding stating that the double jeopardy clause does not bar consideration of acquitted conduct. That’s it.

Two decades after Watts, Scalia came to the rescue but didn’t have the votes to grant cert on a new acquitted conduct case. In an opinion dissenting from a denial of cert challenging acquitted conduct he called out the Circuits from the bench as misconstruing the Watts decision to permit consideration of acquitted conduct. He urged the Court to grant cert on a new acquitted conduct case to “put an end to the unbroken string of cases disregarding the Sixth Amendment”.

This term, five newly re-listed petitions argue that Watts should be overruled or limited and that the due process clause prohibits imposing sentencing enhancements on criminal defendants based on conduct of which the jury acquitted them.

Justice Jackson, a former public defender and member of the Sentencing Commission will no doubt have some harsh words for prosecutors that attempt to increase sentencing exposure for conduct that the jury acquitted.

While the Court waits to accept one of the relisted petitions related to acquitted conduct, the U.S. Sentencing Commission will vote on May 1st to determine if a proposed guidelines amendment will remove consideration of acquitted conduct. While the Sentencing Commission may make the change and remove reference to Watts - Supreme Court intervention is necessary - no Vital - to ensure that Defendant’s don’t face a trial penalty if they are convicted on several counts of a lengthily indictment.

Currently, SCOTUS has the votes to do so. Gorsuch, no doubt can’t stand the use of acquitted conduct. Jackson, a powerful advocate for tailoring back over criminalization and excessive sentences is also anti-Watts. Justice Thomas Joined Scalia’s dissent speaking out against misconstruing Watts. Cavanaugh will likely side with Gorsuch on the issue.

The only question is whether the Court will see a change in the guidelines sufficient or if they will still feel the need to step in and ensure this practice ceases.

Either way, I predict that we will be able to say goodbye to the “acquitted conduct” doctrine.

Fingers crossed for May 1st.