One Juror’s Thoughts on Acquitted Conduct Sentencing

The fundamental wrongfulness of sentencing a person based upon acquitted or uncharged crimes has been reared its ugly head with some regularity, but rarely do we get a glimpse of its impact on a participant who is not engaged in the defense.  But in the case of Antwuan Ball, where a $600 drug deal could put him in prison for 40 years, a window is opened.

By way of brief background, the government’s sentencing argument relies on two propositions, that the crime of selling


5 grams of more of crack cocaine authorizes a sentence of “not less than 5 years nor more than 40 years” incarceration. Hence, any sentence which is within the 5-to-40 year range “plainly falls within the authorized sentence.”


A sentence falling anywhere within that statutory range is therefore constitutionally appropriate for the crime.

Second, the Court noted that the Booker remedial opinion concluded that 18 U.S.C. § 3661, which provides that no limitation shall be placed on the information concerning the background, character, and conduct of the convicted person that a sentencing court may receive and consider, posed no Sixth Amendment problem and permits a sentencing court to consider acquitted conduct.


Thus, be adding apples to oranges, the crime for which a defendants stands convicted to the unproven or acquitted “information concerning the background, character, and conduct,” the government seeks to influence the court to sentence a defendant for his bad character and conduct, not because it’s proven but because he can.

When news spread of the government’s sentencing position as to Antwuan Ball, one of his jurors (#6) was moved to action.  Not only because he felt that this was fundamentally wrong for the defendant, but because of the cynical disregard of this position for the men and women who sat on the jury, gave up months of their lives, tried so hard to do the right thing, and ultimately arrived as their verdict.

Juror #6’s letter to District Court Judge Richard W. Roberts is quite a remarkable expression of the dismay of a citizen at how the system has been manipulated and undermined by the facile twists of law and reason that result in the use of acquitted and uncharged conduct in sentencing.  Unlike those who are happy to ignorantly opine that, “screw him, he’s guilty of something so who cares what happens to him,” this is from an ordinary citizen who fulfilled his civic duty and has actual knowledge of what the government could prove.

Just as remarkable is the way Juror #6 is able to express his feelings.  While the entire letter is a must-read, this will give you a sense:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements.  We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail.  If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves.  We, the jury, all took our charge seriously.  We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy.  We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case.


Sentencing is not only wrong because of its impact on the defendant, but because of its smack in the face to those citizens who gave of themselves to see that justice was done.

H/T Berman

One thought on “One Juror’s Thoughts on Acquitted Conduct Sentencing

  1. JT

    5-40 years? What kind of insane range is that? Putting 35 years worth of life at the discretion of a judge or a jury makes absolutely no sense, especially when the crime is being weighed in ounces and not dollars. This makes little sense and is an absolute abuse of justice.

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