Doug Berman at Sentencing Law and Policy has been following the efforts of the Federal Defenders to provide background papers on some of the most pressing issues in federal sentencing under the heading of deconstructing the relevant sentencing guidelines.

Amy Baron-Evans, National Sentencing Resource Counsel at the Federal Defenders, along with Jennifer Niles Coffin, has produced an extraordinary paper on the use of uncharged and acquitted conduct in federal sentencing, and has made the paper available to the rest of us here.

Under certain portions of the “relevant conduct” guideline and its commentary, judges are required to calculate the guideline range based not only on the crime of conviction, but on separate crimes, comprised of their own elements, of which the defendant was acquitted, with which the defendant was never charged, or which were dismissed.1 The Commission advises judges to find these separate crimes by a preponderance of the “information,” without regard to its admissibility under the rules of evidence, if there is sufficient indicia of reliability to support its “probable accuracy.”2 The guideline range is then increased by the same number of months or years as if the defendant had been charged by indictment and convicted by a jury on proof beyond a reasonable doubt, limited only by the statutory maximum for the offense of conviction. These provisions were a radical departure from past practice in the federal courts and national experience in the states, were not authorized by Congress, and were adopted without empirical support. They have been subject to enduring criticism and calls for reform since their inception, to no avail.

For anyone whose practice includes federal defense, this paper is of enormous value and will serve your clients well.  Download it, read it, read it again, and save it.  You will appreciate it.  You will use it.

Kudos to Amy Baron-Evans and Jennifer Niles Coffin, and my thanks for making your efforts available to the rest of us.