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Earth to Academia Re: Jones Certiorari Denial

The defense bar is hopping mad about the denial of cert in the Jones case.  There, the Court declined to hear a challenge to the use of acquitted conduct in fashioning the sentence.  Kent discussed it here, and I did here.

There has been a good deal of fussing about it, as you might expect.  There have also been guesses galore about why the Court denied review.  The most remarkable I have seen is this one by University of Illinois law Professor Margareth Etienne (quoted in the National Journal):

Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.

With all respect to Prof. Etienne, a Yale Law graduate, her analysis is wildly and transparently incorrect.
Her explanation assumes that the rule allowing consideration of acquitted conduct is, not only wrong, but so obviously wrong that a majority of Justices, if not all of them, plainly understand its perversity. Thus, they're chomping at the bit for the most apt vehicle  --  as lawyers say  --  to overturn it. They passed by Jones because, so Prof. Etienne would have it, they really want to announce a broader rule barring use, at sentencing, not just of acquitted conduct but of all conduct not bound up in the offense of conviction.

Good grief.  Where to start?

First, this is a remarkable spin for the side that couldn't get enough votes to put the case on the docket, much less win it, and still less win a broader rule the Court has never come close to adopting. The easy "I-must-be-right-and-they-must-agree-that-I'm-right" presumption behind this thinking is what might be viewed as arrogant.

Second, in the lower courts, the defense has lost across the board what should be its easiest case, that is, its challenge to the rule allowing consideration of acquitted conduct.  If there is a circuit that's adopted the defense argument, I don't know about it.  Last I looked, the Sixth Circuit, for example, was saying that all its sister circuits had rejected it, United States v. White551 F.3d 381 (6th Cr. 2008) (en banc).

If the defense could have dug up something that at least resembled a circuit split, cert. very likely would have been granted.  But they couldn't.

Third, standing Supreme Court precedent holds that use of acquitted conduct is proper, United States v. Watts, 519 U.S. 148 (1997).  It's true that Watts was decided before Booker, and concerned a Fifth rather than a Sixth Amendment challenge, but the courts of appeals since then have unanimously held that its holding illuminates, if it does not control, challenges like the one presented in Jones.  

Fourth and relatedly, the point is that it's nothing short of astonishing for Prof. Etienne, or anyone else, simply to assume that, unbeknownst to the outside world (and apparently to even four Justices), Watts is no longer good law.  

Fifth, Prof. Etienne just blows by the fact  --  which has been quite important to the courts of appeals  --  that the Apprendi/Booker rule limits district courts from themselves considering (as opposed to having juries consider) conduct that would take the sentence outside the statutory range.  But Jones's sentence was within the range.  I strongly suspect that's the actual reason the Court passed on it:  It's decided correctly.  This, of course, is the principal reason at the heart of the great majority of cert. denials.

Sixth, the notion that SCOUTS is prepared to hold that district courts may consider only conduct bound up in the offense of conviction is, to be blunt, nonsense. It would judicially repeal 18 USC 3661, which provides that:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

This is, of course, not only the longstanding practice and the rule Congress has mandated; it is also the only sensible one.  It is, indeed, the one the defense bar itself adamantly insists upon in every other context.  Now, however, the same defense bar that wants to continue to call the defendant's mother to testify about how sweet he was twenty years ago when he was six, demands to lock in the You Cannot Look Here box the information about how he routinely smacks around his wife and kids and threatens the neighbors.  This because it was not alleged in the indictment or shown at trial, even though broad-based information about the defendant's overall background, behavior and attitude has always, and rightly, been considered essential in deciding the sentence.

Seventh, Prof. Etienne either has not read, or seriously misunderstands, Booker. The whole reason the Booker Court chose against requiring sentencing proof beyond a reasonable doubt (and instead chose to make the guidelines advisory) was to preserve the real offense system Congress adopted in the SRA.  See Booker, 543 U.S. 220, 248-249.  At the heart of the real offense system is, as anyone familiar with the Act knows, the relevant conduct rule.  And at the heart of the relevant conduct rule is the view that a sentencing judge is not and should not be confined only to facts proved to the jury at trial.  A discussion of the Jones cert. denial that omits this history is astoundingly uninformed.  

Eighth, the Etienne analysis misapprehends the way the Supreme Court works. It does not look to leapfrog existing law, and still less does it look to leapfrog existing law as applied by every one of the circuit courts based on its own modern precedent. The idea that the Court would by-pass what Justice Scalia correctly said was the "perfect case" to start cutting back on the relevant conduct rule (if a majority of the Court actually wanted such a cutting back, which, so far as any existing evidence shows, it does not), in order to wait for a coming-in-the-by-and-by less compelling case, is so far-fetched as to be nonsensical. 

Beyond that, if the Court really wanted to render a broad ruling entirely forbidding consideration of conduct not included within the offense of conviction, of course it could have done so in the Jones case.  Who's to stop it?  It's anything but unheard of for the Court to hand down broad and bright-line rulings --  when it wants to.  Isn't there this case called "Miranda?"

It seems to me that Prof. Etienne's analysis could emerge only from the extreme pro-defendant bubble that exists at so many law schools.  It's just utterly disconnected from the sensible, centrist, precedent-grounded and widely held view that a defendant's Sixth Amendment rights cabin a judge's discretion outside, but not within, the sentencing parameters established by statute.  

As I was saying, Earth to Academia.......


"Stupid"? Even "breathtakingly" so? Bill, you are being much, much too kind.

Hey, I didn't attend Yale, but even my feeble mind can see the absurdity and utter, unintelligible incompetence dripping off her blathering words.

She better hope that she has tenure. On second thought, never mind. I have reviewed her CV. She is bulletproof, especially in light of her having exercised her First Amendment right of association with ...


I changed it to "wildly and transparently incorrect" I thought "breathtakingly stupid" sounded a bit mean. As to whether it's true....

Yes, she's bulletproof on account of her CV, but the bigger problem is that there won't be any heartburn in academia with what she says. She won't be a target; she'll be a hero. And, with academia, that's the whole problem. If you're a Lefty, you can and will get away with anything.

This is a serious rhetorical tail-whipping. Professor Etienne should be embarrassed.


Thanks. It's just astounding that a professor at a respectable law school could make the argument she does.

I see that Doug Berman, on another thread, says merely that he's "not impressed" with Prof. Etienne.

As is often the case, I disagree with Doug. I'm quite impressed. Indeed, I'm in awe that a law professor thinks -- and thinks correctly -- that she'll not only get away with this, but be quoted as an authority in the National Journal.

Being an academic Leftist means never having to say you're sorry.

It's no longer respectable. Were I the Dean of the place, I would address the fact that a faculty member got something so wrong. This is an embarrassment, and if Professor Etienne had a shred of humility, she would apologize.

It would be beyond funny if a student in one of her classes wondered whether she really should be grading anyone given that she got this so wrong. It's a question I'd have.

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