October 1, 2019 9:00AM

Poll: The Democratic Coalition Is Divided Over Socialism, Attitudes Toward the Rich

With the democratic primaries underway, the multitude of Democratic candidates will likely highlight the fault lines that divide the Democratic Party. The recent Cato 2019 Welfare, Work, and Wealth National Survey found one such fault line dividing liberal and moderate Democrats: socialism and attitudes toward the rich.

Democratic party divided over socialism, feelings toward the rich

Liberal Democrats are about 10-25 points more likely than moderate Democrats to:

  • have favorable views of socialism (74% vs. 49%)
  • to strongly support raising top marginal tax rates to 70% (60% vs. 38%)
  • to strongly agree that people admire the rich too much (51% vs. 36%)
  • to strongly agree the U.S. wealth distribution is “unjust” (51% vs. 30%)
  • to believe that billionaires are a threat to democracy (58% vs. 49%)

Conversely, moderate Democrats like the rich more than liberal Democrats do. Moderate Democrats are about 10–20 points more likely than liberal Democrats to

  • feel more “admiration” than “resentment” toward the rich (65% vs. 48%)
  • believe the rich earned their wealth by creating value for society (64% vs. 48%)
  • agree “we are all better off when people get rich” because they invest in new businesses and technology (58% vs. 41%)
  • strongly agree there’s nothing wrong with making as much money as possible (50% vs. 38%)

Full survey results and report found here.

Implications

These divisions could have important implications as Democratic candidates seek to stand out and attract primary voters. In particular, as Democratic candidates have proposed new wealth taxes, "taxing the hell out of the wealthy," or asserted that billionaires are the reason for people's frustrations. These proposals and claims may be effective in garnering the support of the Democratic Party's leftward flank, but may fail to capture the enthusiasm of more centrist voters.

Read more of the survey report here.

The Cato Institute 2019 Welfare, Work, and Wealth Survey was designed and conducted by the Cato Institute in collaboration with YouGov. YouGov collected responses online March 5 to 8, 2019 from a representative national sample of 1,700 Americans 18 years of age and older. The margin of error for the survey is +/- 2.2 percentage points at the 95% level of confidence.

Sign up here to receive forthcoming Cato Institutesurvey reports.

October 1, 2019 8:00AM

Design, Doorknobs, and the Great Enrichment

As Americans become older and wealthier, there's growing interest in "aging-in-place design" for our homes. In the Washington Post, Stephanie Brick notes that aging-in-place

actually falls under the umbrella of universal design, which is becoming better known in the design industry as inclusive design. This is design — from the full architecture of a building to minute details such as material or fixture selections — that creates an equal experience for people across a wide spectrum of abilities.

Although many of us hearing this would naturally think of the Americans With Disabilities Act (ADA), Brick notes that inclusive design is not just "a set of minimum requirements to be met" but a "holistic strategy" that seeks make living spaces accessible in multiple ways for many kinds of people, now and in the future.

What occurred to me as I read the article is that this is a manifestation of our increasingly affluent society. The average new single-family home today is about 1000 square feet bigger than new homes in 1973, even as household size has declined. Homes are safer, more luxurious, and more technologically advanced than they were a decade or a generation ago. Inclusive design is part of that trend. Deirdre McCloskey writes in her imminent book that "the greatest, yet regularly overlooked, fact about the modern world" is the Great Enrichment, the fact that we are roughly 3,000 percent richer than our ancestors in 1800. And that enrichment continues, in the United States and in increasing parts of the world.

Of course, there are always tradeoffs in design choices. Stephanie Brick notes that "knobs can be difficult to grip for someone with arthritis or who has limited mobility. Lever handles for doors and faucets, as well as pulls for cabinetry hardware instead of knobs, are a simple adaptation." But at the same time as Brick's article appeared, a Wall Street Journal "Mansion" section article addressed the damage pets can do to houses, including a $1.25 million Colorado home: "Another $1,000 was spent to replace door levers with doorknobs because the pups were sneaking into guest rooms and gobbling up things like vitamins." Inclusive or not, no design is going to satisfy every customer.

September 30, 2019 12:45PM

Fairness for High Skilled Immigrants Act: Wait Times and Green Card Grants

In an overwhelming vote, the House of Representatives passed the Fairness for High Skilled Immigrants, a bill to phase out the per country limits on employment-based immigrant visas (or green cards), which lead to legal permanent resident status. The Senate is working on its own version of the legislation. The per country limits provide that no single nation can receive more than 7 percent of the total green cards issued in a year (unless they would otherwise go unused).

Because Congress has failed to authorize enough green cards for workers hired by U.S. employers, a large backlog of applicants has developed. The largest employment-based backlog is in the second and third preference categories for employees of U.S. businesses with at least bachelor’s degree (i.e. EB2/EB3). As of May 2018, about 586,439 workers and their families were waiting for EB2/EB3 green cards, based on figures from U.S. Citizenship and Immigration Services. This number includes an estimate of the spouses and children who are waiting with the workers.

The per country limits, however, cause this backlog to develop unevenly. They result in an inequity between the proportion of applicants from certain countries and the proportion of green cards that nationals of those countries receive. Figure 1 shows the estimated number of new applicants in 2018, the number of green cards issued by country of origin, and the backlog by country of origin. The fact that employers requested more than half of the green cards for Indians but Indians received just 13 percent of those issued has caused the backlog to develop almost exclusively for Indians.

The Indian backlog means that they carry almost the entire burden of the green card shortage. While they wait in line, nationals of other countries get to cut to the front of the line. Going forward, new EB2/EB3 applicants from India in 2019 will face astronomical wait times. At the current pace, it will take 49 years to process the Indian backlog—if people stick it out that long—and nearly 50,000 Indians would die before then. During that entire half century, other immigrants would keep bypassing Indians with almost no wait at all. Table 1 shows the projected wait times by country based on the current rate at which green cards are issued. 

The Fairness for High Skilled Immigrants Act would phase out the per country limits for all employment-based immigrants, so that immigrants would receive green cards on a first-come, first-served basis without regard to birthplace. After a period of adjustment, the share of green cards that each nationality receives will equal the share of applicants from each country. But because such a large backlog of Indians, it will take several years to work through the backlog.

Read the rest of this post »
September 30, 2019 12:04PM

Poll: Who Finds the Most Meaning in their Lives?

The Cato 2019 Welfare, Work, and Wealth National Survey investigated who finds greater meaning and purpose in their lives. The survey found that Americans’ beliefs about hard work, responsibility, and agency may have something to do with it. Overall, 83% of Americans agree that:“I feel like I have purpose in my life; my life has meaning,” while 16% disagree. A little less than half (46%) “strongly agree” and 37% somewhat agree their lives have meaning.

Full survey results and report found here.

Some types of people are more likely to say they have greater meaning and purpose in their lives.[1]People who:

  • strongly believe hard work is its own reward (74%)
  • strongly believe they have personal agency (68%)
  • strongly believe in personal responsibility (60%)
  • are very compassionate (58%)
  • are not very envious (70%) or resentful (63%)

Who finds most meaning and purpose in life?

The aforementioned individuals are much more likely to find meaning and purpose in their lives compared to people who believe external forces direct their lives (30%), don’t emphasize personal responsibility (39%), aren’t very compassionate (38%), are envious (27%), and are resentful of successful people (33%).

These data paint a picture of the psychology of a person most likely to find meaning and purpose in their lives: those who highly value work and responsibility, emphasize what they can control rather than what they cannot, are compassionate, and resist the temptation to feel envy and resentment of others.

Politically, conservatives (58%) are about 20 points more likely than liberals (39%) to strongly agree their lives have meaning. A slim majority (51%) of libertarians strongly believe their lives have meaning.

Demographically, people who volunteer (54%), who attend church more than once a week (68%), religious people such as Protestants (55%) or Catholics (51%), people 65 and over (59%), and African Americans (57%) are more likely to find purpose and meaning in their lives than those who do not volunteer (37%), never attend religious services (36%), are atheist or agnostic (29%), are under 30 (36%), and are White (45%) or Latino (43%) Americans.

Who finds most meaning and purpose in life?

Discussion

These data provide some indication that those who seek greater meaning and purpose in their lives may be more likely to find it through identifying inherent value in their work, taking on more responsibility, emphasizing the things they can control rather than what they cannot, and serving those around them. Furthermore, these data also suggest that those who let go of their envy and resentment of others may have greater ability to find their purpose. Some of the demographic differences indicate that people may also find meaning with age, family, and community.

Cato 2019 Welfare, Work, and Wealth National Survey

Read more of the survey report here.

The Cato Institute 2019 Welfare, Work, and Wealth Survey was designed and conducted by the Cato Institute in collaboration with YouGov. YouGov collected responses online March 5 to 8, 2019 from a representative national sample of 1,700 Americans 18 years of age and older. The margin of error for the survey is +/- 2.2 percentage points at the 95% level of confidence.


[1]The author compared how much meaning people feel in their lives among Americans who scored high versus those who scored low on a variety of psychological measures of envy, compassion, responsibility, and personal agency. More methodological information can be found here.

  • Less Envious: Americans who scored low on the Dispositional Envy Index were 43 points more likely than those who scored high to strongly feel a sense of purpose (70% vs. 27%). (See Appendix D.)
  • CompassionateAmericans who scored high on the Dispositional Compassion Index were 20 points more likely than those who scored low to strongly feel a sense of purpose (58% vs. 38%). (See Appendix C.)
  • Believe in Personal AgencyAmericans who scored high on the Belief in Personal Agency Index were 38 points more likely than those who scored low to strongly feel a sense of purpose (68% vs. 30%). (See Appendix A.)
  • Believe in Personal ResponsibilityAmericans who scored high on the Just Deserts Index were 21 points more likely than those who scored low to strongly feel a sense of purpose (60% vs. 39%). (See Appendix B.)
  • Less ResentfulAmericans who scored low on the Resentment of High Achievers Index were 30 points more likely than those who scored high to strongly feel a sense of purpose (63% vs. 33%). (See Appendix E.)
September 27, 2019 11:02AM

Poll: What Americans Think Cause Wealth and Poverty

What Americans think makes a person wealthy

The Cato 2019 Welfare, Work, and Wealth National Survey investigated what Americans believe cause wealth and poverty. Americans believe the top three reasons most important for determining a person’s wealth and success are hard work and grit (50%), ambition (38%), and family connections (31%). Not far behind include a willingness to take risks (29%), education (27%), inheritance (27%), self-discipline (27%), luck (20%), natural intelligence (18%), race and gender (11%), and special favors from government (9%).

What Americans think causes poverty

Full survey results and report found here.

When asked the top three causes of poverty in this country, Americans agree that poor life choices (42%) and abuse of drugs and alcohol (40%) are key. But the public is divided about what the third factor is: about 3 in 10 think lack of job opportunities (29%), breakdown of families (29%), and a lack of work ethic (29%) are some of the most important reasons. After that, about a quarter say that a lack of educational opportunities (27%), discrimination like racism and sexism (25%), and an unfair economic system (22%) are the primary causes. Fewer say that government programs fostering dependency (14%), inadequate government programs (13%), lack of role models (8%), or a lack of delayed gratification (7%) are the most important causes of poverty in the United States.

Overall, most Americans tend to believe that wealthy people gain their wealth through the choices they make, such as working hard and being ambitious. Fewer people tend to emphasize external forces responsible for people’s wealth, such as immutable traits like race, intelligence, or luck. Americans are more likely to say external factors cause poverty but believe that personal choices matter too.

Ideological Divide

Liberals say wealth and poverty are largely due to chance. Conversely, conservatives believe wealth and poverty are largely due to personal choices.

  • Strong liberals say the top reasons for people’s wealth: family connections (48%), inheritance (40%), and getting lucky (31%)
  • Strong conservatives say top reasons for people’s wealth: hard work (62%), ambition (47%), self-discipline (45%)

What causes wealth? Liberals emphasize external forces, conservatives focus on personal agency

  • Strong liberals say the top causes of poverty are discrimination (51%), an unfair economic system (48%), and lack of educational opportunities (48%)
  • Strong conservatives say the top causes of poverty are poor life choices (60%), a lack of work ethic (52%), breakdown of families (47%), and drugs and alcohol (47%)

What causes poverty? Liberals emphasize external forces; conservatives focus on personal agency

Liberals and Conservatives Disagree about Personal Agency

Part of the reason liberals and conservatives disagree about the causes of poverty and wealth is that they disagree about the extent to which personal choices or external forces directs people’s lives. In other words: they disagree about the role of personal agency.

This idea is related to a concept in psychology called the locus of control. People who tend to believe events in their lives are within the control of the individual are described as having an internal locus of control. Those who tend to believe events in their lives are outside of a person’s control are described as having an external locus of control. While in reality both external forces and personal choices play a role, the question is what individuals emphasize.

Psychologists have developed survey questions intended to measure if one tends to have an internal or external locus of control. The Cato 2019 Welfare, Work, and Wealth Survey included a battery of these survey questions developed by psychologist Hanna Levenson to measure the extent to which Americans feel an internal or external locus of control.[1]

Beliefs about controlling one's individual outcomes: examining the locus of control

In general, a majority of Americans tend to feel that individuals have personal agency, or an internal locus of control. For instance, 74% of Americans agree that their lives are determined by their actions, and 78% believe that when they get what they want it’s usually because they worked hard to get it.

Ideological Differences in the Locus of Control

The survey finds that liberals emphasize external forces and that conservatives emphasize personal choices in explaining personal outcomes in their own lives. Strong conservatives are about 15–20 points more likely than strong liberals to agree that “whether or not I get to be a leader depends mostly on my ability” (73% vs. 57%), to strongly agree that “my life is determined by my own actions” (52% vs. 33%), and to strongly agree that “when I get what I want, it’s usually because I worked hard for it” (53% vs. 30%).

Conservatives are more likely to believe personal choices impact outcomes

Discussion

These data demonstrate that liberals and conservatives emphasize the impact of personal agency on outcomes differently. Conservatives are more likely to believe that people are responsible for their situations and use their agency to direct their lives, and liberals are more likely to believe that people’s situations are shaped by their environment and other external factors. These differences in perception and emphasis likely lead liberals and conservatives to reach different conclusions about how public policy should approach poverty, welfare, work, and wealth.

Read more of the survey report here.

The Cato Institute 2019 Welfare, Work, and Wealth Survey was designed and conducted by the Cato Institute in collaboration with YouGov. YouGov collected responses online March 5 to 8, 2019 from a representative national sample of 1,700 Americans 18 years of age and older. The margin of error for the survey is +/- 2.2 percentage points at the 95% level of confidence.


[1]See “Internal Locus of Control” survey question battery from Hanna Levenson,“Differentiated Among Internality, Powerful Others, and Chance,” in Research with the Locus of Control Construct(New York: Academic Press, 1981), ed., Herbert M. Lefcourt, pp. 15–63.

September 27, 2019 8:43AM

More Than Patching Up: What the CFPB Should Do with Mortgage Underwriting Standards

Last week was a significant one for housing finance policy, as the Consumer Financial Protection Bureau gathered input on how to reform the underwriting rules that mortgage lenders must follow. With $15 trillion of mortgage debt outstanding, this is a subject of great economic significance for the U.S. economy. Unsurprisingly given the high stakes, it is also a contentious subject on which some of the largest trade and activist groups in Washington — from banks and Realtors to community groups and public-interest lawyers — have weighed. I too submitted a comment letter on behalf of the Cato Institute.

The auspicious news is that the CFPB has announced the expiration of a damaging loophole that has increased risk in mortgage finance. In her decision, CFPB Director Kathy Kraninger enjoyed the support of Mark Calabria, who as head of the Federal Housing Finance Agency is responsible for prudential standards at Fannie Mae, Freddie Mac, and the Federal Home Loan Banks. In this way, Kraninger and Calabria can help both consumer protectionandfinancial stability. The comment letters focused on what, if anything, should replace this loophole.

The regulations the CFPB seeks to update came into effect in 2014. As is well-known, the financial crisis caused a great deal of distress, with up to ten million American families losing their homes to foreclosure. Most of these people had borrowed unprecedented amounts for housing in which they had little equity. High mortgage payments relative to incomes meant that, absent continued price appreciation, these new buyers might soon find themselves unable to keep up. A great deal of blame for their plight belongs with Fannie and Freddie, two government-sponsored enterprises (GSEs) that, thanks to their dominance of the secondary mortgage market and the prodding of politicians, led a steady decline in underwriting standards that ended in tragedy. Part of the legacy of the crisis was the giant bailout of Fannie and Freddie, which the Congressional Budget Office estimates left U.S. taxpayers $300 billion worse off.

Thus, it was a surprise that, when the Consumer Financial Protection Bureau crafted new rules for mortgage underwriting in 2013, it carved out an exemption for Fannie and Freddie from the general conditions applying to qualified mortgages (QMs), so called because they are meant to have features that make them unlikely to default. Whereas non-GSE QMs couldn’t exceed a limit on monthly debt payments of 43 percent of the borrower’s gross income in order to benefit from the QM safe harbor, GSE mortgages could. This debt-to-income (DTI) ratio matters because it predicts default, especially in times of stress like the 2008 crisis. Along with the borrower’s credit history, the loan amount relative to the price of the home, and other factors such as monthly cash flow, DTI ratios form part of a common suite of loan underwriting measures.

Despite the significance of DTI, the CFPB made Fannie and Freddie exempt from its post-crisis DTI limit, creating the loophole known as the "GSE patch” or "QM patch." Since the patch came into effect five years ago, lenders have dished out high-DTI mortgages at a rising pace, safe in the knowledge that Fannie and Freddie — by now in government "conservatorship" — would buy them. Sure enough, the GSEs obliged, so that — as the chart below listing Fannie and Freddie mortgage acquisitions shows — an increasing share of the loans they buy from lenders have been high-DTI loans.

Purchase-Money Acquisitions Greater than 43% DTI

Source: Treasury Housing Finance Report, September 2019. Note: Purchase-money acquisition means a transaction in which the proceeds finance acquisition of a property. UPB stands for unpaid principal balance, i.e. the value of the loan that the borrower has not yet repaid.

The problems with the patch are several and grave. First, by the CFPB’s own reckoning, mortgages issued under the patch are more likely to go delinquent than similar loans the GSEs cannot purchase because the loans are larger. This disparity in loan performance did not exist before the patch came into effect. Not for the first time, the opportunity to sell loans to a taxpayer-backed entity seems to have caused poorer underwriting standards. Privileging the GSEs has not only devalued the quality of Fannie and Freddie’s portfolio, but also increased their role in housing finance. As the chart below shows, Fannie and Freddie have grown the share of loans they buy since 2014. That contradicts a key goal of the Trump Administration — namely, to shrink the size of what remain fragile and systemically important institutions. It is also highly imprudent, given the lessons from 2008 about the dangers of a government duopoly.

Loan Type Composition of Conventional Purchase Originations under $417,00, 2000-2017

Source: CFPB ATR/QM Rule Assessment Report, January 2019

The patch has also prevented a liquid market for non-QM mortgages from emerging. The CFPB’s intent in creating the QM was to give presumption of compliance to mortgages that, by meeting strict criteria, were unlikely to default early. All other mortgages would be subject to comprehensive underwriting by lenders. But the patch has created a loophole for riskier mortgages to eschew such underwriting. Even at its birth, the patch was a poor remedy to an ailing housing market. Now that the economy is booming, it has become unjustifiable.

Fortunately, the CFPB has announced it will let the patch expire as originally intended on January 20, 2021 or on the GSEs’ exit from conservatorship — whichever comes first.

But Kraninger shouldn’t stop there. The 2013 regulations created potentially unlimited lender liability for mortgages that do not meet the QM safe harbor. Unsurprisingly, such a draconian policy has chilled the market for non-QM loans. While the patch is in place, lenders have little incentive to push for changes to the QM standard, since they can avoid its most onerous burdens by directing their originations toward Fannie and Freddie. Now that the patch will expire, the need for an alternative standard is urgent.

With that in mind, the CFPB should afford QM protection to every mortgage that hasn’t gone delinquent within two years of origination. This will reconcile the Bureau’s objective of minimizing early delinquencies with a reasonable standard for liability that doesn’t chase lenders away from the mortgage market in fear of future litigation. There might be certain exceptions from the safe harbor for mortgages with non-standard terms such as high fees, variable rates, or balloon payments. But, in general, loan defaults that occur long after origination are not the consequence of poor underwriting but changes in the economy or the borrower’s own circumstances. Regulation must acknowledge that.

The CFPB should keep a 43 percent maximum debt-to-income ratio for loans that are QMs from the point of origination. That contradicts the view of some lenders, real estate agents, and think tanks who argue that an interest-rate variable should replace the DTI ratio. In a competitive market, their argument might be sound: interest rates summarize all the information that individual factors such as DTI supply regarding the borrower’s credit risk. The higher the interest rate, the greater the chance of non-repayment (other things equal). But our government-supported, duopolistic housing finance system blunts the predictive power of interest rates because low-risk borrowers subsidize high-risk borrowers. In that context, DTI is superior to interest rates.

Furthermore, the most common proposal for an interest-rate substitute for DTI (the Average Prime Offered Rate, plus 200 basis points) would substantially raise the share of Qualified Mortgages with early delinquencies, according to its proponents’ own data. In a distressed environment, that share will likely only go up.

In their effort to reduce the extent of taxpayer support for the mortgage market, Directors Kraninger and Calabria face formidable opposition from interest groups who benefit from greater lending volumes, looser underwriting, and the continued government management of Fannie and Freddie. Yet they must not waver, because avoiding a repetition of the last housing crash hinges on stopping public policy from promoting risk and unsound lending. The GSE patch’s expiration is a good start.

You can read Diego Zuluaga’s full submission to the CFPB here.

[Cross-posted from Alt-M.org]

September 26, 2019 4:15PM

Addressing the Gross Injustice of Acquitted Conduct Sentencing

Under our Constitution, the jury trial is supposed to be the cornerstone of criminal adjudication. The independence of citizen jurors has always been understood to be an indispensable structural check on executive, legislative, and even judicial power. And that independence has always entailed a special solicitude for jury acquittals, which are intended to have unassailable finality. Yet prosecutors and judges routinely do end-runs around this intended finality -- and thus, around the jury trial itself -- through the pernicious practice of "acquitted conduct sentencing."

"Acquitted conduct sentencing" refers to the scenario in which a judge sentences a defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they were acquitted. For example, in Jones v. United States, the defendants were charged with both (1) distributing small amounts of crack cocaine, and (2) a conspiracy to distribute large amounts of crack cocaine. The jury convicted on the distribution charge, but acquitted on the conspiracy charge. Common sense and basic constitutional principles would seem to dictate that the defendants be sentenced only on the basis of their distribution.

But bizarrely, the judge in that case effectively disagreed with the jury's verdict, concluded that the defendants did engage in the charged conspiracy, and sentenced them far more harshly than would otherwise have been warranted. While the Guidelines sentencing range for the distribution charge would have "only" been 27-71 months (still a wildly excessive punishment, but beside the point here), the three defendants in Jones were ultimately sentenced to 180, 194, and 225 months -- in essence, punishing them about four times more harshly solely because of alleged conduct for which they were acquitted.

Acquitted conduct sentencing is not only unjust, but flagrantly unconstitutional. Although the Supreme Court has held that this practice does not specifically violate the Double Jeopardy Clause (a conclusion which itself is questionable), it has never addressed whether the practice violates either the Due Process Clauses of the Fifth and the Fourteenth Amendment, or the Sixth Amendment right to a jury trial. And as Cato has argued in several amicus briefs on the subject, acquitted conduct sentencing is inherently at odds with the understanding of the jury trial in the Anglo-American legal tradition, and especially contrary to the special sanctity and unassailable finality of jury acquittals. Permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a jury trial, but also denies the community their proper role in overseeing the administration of criminal justice.

Moreover, it's especially important to address acquitted conduct sentencing now, given how it reinforces and exacerbates the larger problem of coercive plea bargaining. Today, jury trials have been all but replaced by guilty pleas as the baseline for criminal adjudication, and there is ample reason to doubt whether the bulk of these pleas are truly voluntary. And as Judge Patricia Millett of the D.C. Circuit recently explained, "factoring acquitted conduct into sentencing decisions imposes almost insurmountable pressure on defendants to forgo their constitutional right to a trial by jury. Defendants will face all the risks of conviction, with no practical upside to acquittal unless they run the board and are absolved of all charges." Precluding sentences based on acquitted conduct would therefore be a small but vital safeguard against the wholesale erosion of the jury trial itself.

Fortunately, both the Supreme Court and Congress will soon have opportunities to clarify that acquitted conduct sentencing is unjust and unconstitutional. First, on the judicial side, the cert petition currently pending before the Court in Asaro v. United States explicitly raises the question of "[w]hether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury." The Cato Institute, Due Process Institute, National Association of Federal Defenders, and FAMM all filed briefs in support of this petition, and there is good reason to think that many of the Justices will be interested. Both Justice Thomas and Justice Ginsburg joined the dissent from denial of certiorari in the Jones case from 2014, in which Justice Scalia explicitly called upon the Court to clarify that acquitted conduct sentencing violates the Sixth Amendment, and that the Court's history of evading that question "has gone on long enough." Justice Kavanaugh, back when he was a judge on the D.C. Circuit, also repeatedly criticized the practice.

But key members of Congress are also moving to eliminate acquitted conduct sentencing. Just today, a bipartisan group of Senators, including Dick Durbin (D-IL), Chuck Grassley (R-IA), Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT), introduced the "Prohibiting Punishment of Acquitted Conduct Act of 2019." According to the Senate's press release, the bill would "preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing," and it would define "acquitted conduct" as "acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal." The bill has also been endorsed by a diverse, cross-ideological array of dozens of different public interest groups, including the ACLU, American Bar Association, American Conservative Union, Due Process Institute, Innocence Project, and Koch Industries (as a general matter, the Cato Institute does not endorse proposed legislation).

Whether through judicial or legislative action, or both, the unconstitutional scourge of acquitted conduct sentencing must be abolished -- and it looks like that time may be coming soon.