Comments on the U.S. Sentencing Commission’s Notice of Proposed Amendments to the Sentencing Guidelines
January 30, 2024
The Honorable Carlton W. Reeves Chair
U.S. Sentencing Commission
One Columbus Circle, NE
Suite 2-500, South Lobby Washington, DC, 20002-8002
RE: Justice Action Network/Due Process Institute Comments on the U.S. Sentencing Commission’s Notice of Proposed Amendments to the Sentencing Guidelines
Dear Chair Reeves and Members of the Commission:
We write in response to your request for public comment on proposed amendments to the Sentencing Guidelines and related policy issues posted in December 2023. We appreciate the opportunity to comment on these critical amendments.
The Justice Action Network (JAN) is the nation’s largest bipartisan organization dedicated to criminal justice reform. We believe in a strategic, data-driven approach to changing hearts, minds, and laws for a smarter, fairer, more efficient and effective justice system. JAN brings policymakers, stakeholders, and advocates from across the political spectrum together to advance strong, bipartisan criminal justice reform efforts at both state and federal levels.
Due Process Institute is a nonprofit, bipartisan, public interest organization that works to honor, preserve, and restore procedural fairness in the U.S. criminal legal system. Founded in 2018, it is guided by a bipartisan Board of Directors and supported by bipartisan staff. Due Process Institute creates and supports achievable bipartisan solutions for challenging criminal legal policy concerns through advocacy, litigation, and education.
We write today in support of proposed amendments to the Sentencing Guidelines regarding criminal history of youthful offenders and consideration of acquitted conduct. Together, these amendments help to fulfill the Commission’s mission to “establish sound and equitable sentencing policies and practices for the federal courts.” Research and evidence from states demonstrate that justice-involved youth must be viewed and treated differently than adults due to their cognitive stage of development and the impact incarceration of youth has on recidivism rates. Because of this state-tested evidence base, increasing federal sentences for these individuals, later in life as adults, raises equity concerns. Similarly, the prohibition of considering acquitted conduct at sentencing would change one of the more unsound federal sentencing processes. The practice of considering acquitted conduct at sentencing faces continuous litigation in the courts and potential legislation in Congress due to the threat it poses to due
process and the right to trial enshrined in the U.S. Constitution. Judges and Congress alike would benefit from revised sentencing guidance from the Commission that stops this practice.
The proposed amendments are under consideration as more than 150,000 people are currently serving sentences in the custody of the Bureau of Prisons, an agency that is chronically understaffed and struggling to manage the safety of staff and incarcerated people. It is imperative that the Commission consider amendments to the Guidelines that consider this backdrop and we thank the Commission for considering these comments in working to ensure people are not serving unduly lengthy sentences.
1. Significantly Limit or Eliminate consideration of Youth Offenses in Criminal History Scores.
In Proposed Amendment 2, Part A, the Commission proposes options to change how sentences for offenses committed prior to age eighteen are considered in the calculation of a defendant’s criminal history score. In considering these changes, the Commission points to research on age and brain development that show “brain development continues until the mid-20s on average, potentially contributing to impulsive actions and reward-seeking behavior, although a more precise age would have to be determined on an individualized basis.” The Commission separately notes the correlation between age and rearrest rates, where “younger individuals being rearrested at higher rates, and sooner after release, than older individuals,” which is backed by data nationwide.
Courts have long considered the cognitive state of defendants in conviction and sentencing, and they should do so when factoring criminal history into a sentence. If there are class-wide factors that may have impacted a defendant’s state of mind while committing prior offenses, such as undeveloped brains due to age, the courts should not weigh this history the same as a history absent such factors.
Additionally, a growing body of research shows that incarcerating youth may increase their rate of recidivism, leading to further disparities if these offenses are weighed the same as adult offenses. These differences in recidivism rates were revealed by states looking to reform their juvenile justice systems as it became increasingly clear that they were showing a poor return on investment: growing rates of recidivism and growing costs. In developing policy solutions to address this problem, states studied their juvenile justice systems, including offense types, punishment types, and outcomes. What they found was that most youth offenders sent to secure facilities did not see a change in recidivism rate when released, and offenders sent to these facilities for low-level offenses were at an increased risk of recidivating when released. In response to this evidence, states as geographically and politically diverse as California, Florida, Georgia, Kentucky, and Utah reformed their juvenile justice systems to limit the incarceration of youth, instead using community-based solutions to address recidivism, especially for low-level offenses. These states marked both a cost savings and reduced recidivism rate.
These points are particularly salient when considering studies about aging out of crime. The Commission released a report in 2017 that showed older offenders were far less likely to recidivate than younger offenders, regardless of sentence length. Therefore, increasing sentence length because of past offenses committed as a juvenile is unlikely to increase community safety.
Now the Commission must now consider whether youth offenders, whose risk of recidivism may have been exacerbated by secure confinement as well as cognitive development due to their age, should be penalized in calculating their criminal history score for an unrelated offense they later committed as an adult. This penalization for juvenile offenses would come even as many of the states who incarcerated them as youth have recognized that this approach did not work, reforming their justice systems to better tailor them to hold youth accountable. It would not serve justice for the federal system to hold youth offenses to the same standard as adult offenses when the jurisdictions where the youth offenses occurred have changed course.
We urge the Commission to significantly limit or eliminate the consideration of youth offenses in the calculation of a criminal history score. We also urge the Commission to apply these changes retroactively, allowing currently incarcerated offenders the opportunity for judicial review of whether their current sentences are fair and just.
2. Eliminate Use of Acquitted Conduct in Determining Sentences.
Proposed Amendment 3 would change the Sentencing Guidelines to limit or prohibit the consideration of acquitted conduct at sentencing. The Commission notes that the Guidelines currently give wide latitude to sentencing judges to consider conduct that may be “relevant information without regard to its admissibility under the rules of evidence applicable at trial.” The Commission further notes that the Guidelines state the consideration of relevant conduct should fall under a preponderance of evidence standard, lower than the standard needed to convict a defendant of this conduct at trial.
The consideration of acquitted conduct at sentencing violates fundamental rights of the accused, raising major due process and right to trial issues under the Fifth and Sixth Amendments to the Constitution. Further, considering this conduct at sentencing creates a separate system of criminal justice where the burden of proof is lower, but the consequences can be just as severe.
The issues created by the consideration of acquitted conduct at sentencing are unfortunately not solely theoretical. The federal courts have considered several cases on appeal where considering acquitted conduct significantly impacted sentences, and some of these cases reached the Supreme Court. In fact, the Commission’s consideration of Amendment 3 today in part stems from the Supreme Court’s indication in 2023 that it would benefit from the Commission weighing in on this issue.
Congress is also considering intervening to prohibit the punishment of acquitted conduct. Legislation has been introduced on a bipartisan, bicameral basis that would completely bar the consideration of acquitted conduct at sentencing. This legislation has already begun to advance in the House of Representatives, where it passed out of the Judiciary Committee by a vote of 23-0, and could soon be considered by the full House. However, as Congress, the courts, and the Commission determine how best to address this issue, people with unfairly long sentences continue to serve them in prison. Due to the harm this practice is currently causing to people in prison and the impact it has on the tenants of our justice system, the Commission should act now and act broadly to curb it. The revised guidelines should include defining state, local, and tribal court conduct as prohibited from consideration. The Commission should also allow currently sentenced offenders whose sentences were lengthened because of the consideration of acquitted conduct to petition for a reduced sentence.
We thank the Commission for proposing these amendments to the Sentencing Guidelines, and we appreciate your consideration of our comments. If you have any questions, please contact JC Hendrickson at jc@justiceactionnetwork.org or Jason Pye at jason@idueprocess.org.
Sincerely,
JC Hendrickson
Director of Congressional Affairs Justice Action Network
Jason Pye
Director, Rule of Law Initiatives Due Process Institute