Sotomayor and Kagan, An Unforgivable Denial

It’s the case that the Supreme Court said it had been waiting for.  It’s the case that embodied not merely the wrong of sentencing on unconvicted conduct, but the outrage of sentencing on acquitted conduct.   The Supreme Court denied cert in Jones v. United States (see pages 14-16 of the order).

The case is better known for defendant Antwuan Ball, convicted of a single sale of crack and acquitted after trial by jury for a larger drug conspiracy.

To recap, the defendants were charged in a massive crack conspiracy, plus violent crimes. They went to trial, which took 8 months. The jury deliberated for more than two months before returning a verdict.  They acquitted on all counts, except a single distribution count of 600 grams of crack.  Great result? Not so fast.

At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years.

But, but, but . . . acquittal?  Not in this system, pal.

The question of sentencing on related, but unconvicted, conduct is one of the most controversial and disturbing aspects of federal sentencing. What is the point of the constitutional guarantee of a trial if a defendant can be sentenced for conduct for which he was never convicted by a jury?  In Rita v. United States, the Supreme Court held that a sentence above the statutory max for an offense requires a verdict of guilt by a jury, but let stand that a sentence below the statutory max could be based on related conduct found by the judge, based on a preponderance of the evidence standard.

The question of acquitted conduct was left hanging. It’s one of those reprehensible things the Supreme Court does, allowing bad things to happen to people for years until the right case comes before them, where they then tweak the law to correct what they could have done years earlier, saving thousands, maybe hundreds of thousands, of people from prison for being caught in the middle of their half-a-decision approach.  Think of all the people sentenced under draconian mandatory Sentencing Guidelines between Mistretta and Booker.  Oops. Sorry.

Finally, the case was there, before the Supreme Court for its grant of cert. Teed up perfectly. Ready for an answer, whether a person could be sentenced for conduct for which a jury not only didn’t convict, but acquitted.  Acquitted! And . . .


Denied.  But not merely denied. Denied with a dissent by Scalia, with Thomas and Ginsburg joining.  That means the Supreme Court was one vote short of granting cert.  One vote. As in Sonia Sotomoyor.  Or Elena Kagan. One vote.

Scalia, in his typical straightforward way, lays it out:

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been”substantively unreasonable” and therefore illegal.

The fact pattern could not have been more perfect, more complete, more ripe for decision.

For years, however, we have refrained from saying so.In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantivereasonableness review as hypothetical and not presented by the facts of the case. We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact,would be reversed for substantive unreasonableness.

This was the day. This was the case. This was it.

This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed tohave been waiting for. And it is a particularly appealingcase, because not only did no jury convict these defendantsof the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.

Certiorari denied, for lack of one additional vote.

Doug Berman, similarly disturbed by the denial, ponders why justices Sotomayor and Kagan might have refused to vote for cert:

I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).

In other words, they may have feared the Supremes would uphold this travesty, perhaps because they personally would vote to affirm.  After all, as a empathetic Latina once wrote, screw the defendant. It’s not like she gave a damn.  What? You didn’t realize what team she was on in the Second Circuit when you pinned your hopes on her as a Supreme?

The law doesn’t lack for outrages, some of which are reflected in posts here.  But foremost among them is the sentencing of a defendant for conduct for which they were acquitted by a jury.  Not only does this render a farce of the express constitutional right of trial by jury, but all the platitudes about respecting the jury’s verdict are revealed as a sham.

Jones v. United States was the case, the opportunity, for the Supreme Court of the United States to change this.  Yes, all the justices who voted against cert are responsible.  But for Sotomayor and Kagan, this is unforgivable.  Even if the majority would have affirmed this travesty, at least then we would know that our Supreme Court stood for banal expediency, and nothing more.  Instead, we are left with an empty hole while defendants can still be sentenced for the conduct for which they were acquitted.

19 thoughts on “Sotomayor and Kagan, An Unforgivable Denial

  1. william doriss

    Kudos to Scalia, Thomas and Ginsburg for stepping up to the plate. Shame on Sotomayor and Kagan for abdicating their well-advertised judicial principles. And thanx for spelling it out for us. This is outrageous, simpley.
    And then there are “scrivener’s errors” which never seem to get corrected in a timely fashion. Those pesty little acts of malicious pensmanship.

  2. Poul-Henning Kamp

    There is another rational explanation: A majority of the judges think this is a problem Congress should fix, and by taking a pass on this case they give Congress all the incentive imaginable to do so.

    1. SHG Post author

      Nah. This is a purely judicial construct. The only reason the Supreme Court demurs is when its constrained to interpret a bad statute that would require correction to pass muster. Then, the Court might be reluctant to rewrite a statute. This is entirely different.

  3. Alice Harris

    I am often ashamed of the fact that I work in the criminal justice system, because there is so often no justice in it. This is one of those times.

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  5. htom

    “… For depriving us in many cases, of the benefits of Trial by Jury: …”

    Other than that, everything I have to say would have to be redacted.

  6. Chris Harris

    And the Justices just ignored that heart-wrenching and well-thought out and presented letter written to the trial judge from one of the jurors in the case! The trial judge essentially ignored all contrary evidence and sentenced the defendants as if the jury had found the defendants guilty of every ludicrous contention of the prosecution even though the jury had specifically acquitted them of conspiracy and racketeering. Typical though. Police, prosecutors, judges and even the defense attorneys, as well as the so-called correctional system itself, are all parasites of the so-called ‘justice system’. They are dependent upon criminals for their livelihood. They’re all on the same side. Defense attorneys, especially public pretenders, spend most of their time trying to get even innocent defendants to accept plea deals, in return for their “green stamps”, i.e., favor from the offices of the District Attorneys. They’re the bottom feeders of the legal profession. The only protection that we citizens ever had from all that corruption is the jury, yet now that protection has been crushed, since even the Supreme Court of the United States doesn’t give a damn when a jury’s acquittal is simply over-ruled by the trial judge!

    1. william doriss

      Thanx for this cogent comment, Chris Harris. You think exactly like me; only you have stated it better and more succinctly than me. It is a horrible situation that we find ourselves in, the so-called criminal justice system. One wonders when, if ever, the Amerikan people will wake up to rampant abuses in the system,
      both state-wide and federal: Abuses documented ad nauseam. Stories and anecdotes are legion, on a daily basis. It is a national crisis, IMO.
      Thanx of course to SHG for writing postings on these issues and allowing comments such as yours.

      1. SHG Post author

        It’s funny. I questioned the efficacy of allowing this comment from Chris Harris repeating what was already in the post, with a heavy dose of pointless emotionalism plus the usual tin-foil nutjob crap, and then you reply by writing that he thinks exactly like you. Now I know it was a mistake to publish his dopey comment. Thanks for confirmation, Bill.

        1. william doriss

          You’re welcome! Apparently you don’t have as much control over your blawg site as you thought. Zombies have invaded your body and make you post things that you might not otherwise post were you in control of your mind, limbs and digits. I.e., hand-eye coordination has gone awry.
          Yea, upon re-reading, and in light of your feedback, our comments do appear a tad soporific if not sophomoric. I mean, who are we readers to make such sweeping gestures?

          Can we put this to a vote? (I did not think so!)
          I often regret submitted comments, later wondering, what was I thinking? I knew he, SHG, was going to come down on me with a ton of bricks, but I went ahead and submitted something asinine anyway. In another context, it would be called “buyer’s remorse”, a well-known phenomenon amongst some of us. Sometimes I pray that you don’t post. Your blawg site can become an addiction after all, in the same way that watching the ticker tape can be addictive, irregardless of whether one owns any stocks or bonds. I mean, it’s there; it moves, so you watch it.

          Your blawg site exists; it moves right along, so we watch it to see what comes next. Ha.

          Some of us shoot from the hip, like in the movies. In which case, we usually miss the target. Thanx for posting our ill-advised comments anyhow, and
          All the Best,

    1. SHG Post author

      It’s inconsistent with prior statements and writings. It’s not that they are “blameworthy,” which is a moralist word, but hypocritical.

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