Just Because He’s Not Guilty

The D.C. Circuit denied the petition for rehearing en banc, which would have put the court in the awkward position of reinforcing the extant law that allows a district court judge to increase a defendant’s sentence based upon conduct for which he was acquitted.  Crazy, right?

Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison—a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

But the Supreme Court, not to mention the advisory sentencing guidelines, says this is cool. As long as the sentence doesn’t exceed the maximum possible sentence for the crime for which the defendant was convicted, no harm, no foul.

Yet as the law now stands, prosecutors can brush off the jury’s judgment by persuading judges to use the very same facts the jury rejected at trial to multiply the duration of a defendant’s loss of liberty threefold. In that regime, the jury is largely “relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish” at sentencing. Blakely, 542 U.S. at 307.

Why didn’t the court take the case en banc, stand up to the Supreme Court to say that it refused to participate in this offensive absurdity, that a defendant could go to trial, win at trial, and lose anyway?  Why didn’t the court reject what Judge Patricia Ann Millett, in her concurrence with the denial to take the case, calls “little more than a speed bump at sentencing”?

For multiple reasons, the time is ripe for the Supreme Court to resolve the contradictions in Sixth Amendment and sentencing precedent, and to do so in a manner that ensures that a jury’s judgment of acquittal will safeguard liberty as certainly as a jury’s judgment of conviction permits its deprivation.

The problem is precedent.  The D.C. Circuit, despite Judge Millett’s concurrence, is bound by the decisions of the Supreme Court, and the Supreme Court says that this is a fully acceptable practice.  Think of it this way: if the maximum sentence for a single, first-time, sale of drugs is 20 years, because laws always seem to include ridiculously high maximums just in case there is a defendant who is so utterly hated that an appropriate, proportionate sentence for the actual crime doesn’t seem sufficiently onerous, the law would permit a sentence for that crime alone of 20 years.

So what cause is there to complain that a defendant got that 20 year sentence, but it was based on the district judge finding, by a preponderance of the evidence, that the crimes for which he was acquitted compelled the judge to increase the sentence he would otherwise have imposed for the crime for which he was convicted?  After all, the sentence is still within the statutory parameters for the convicted crime, right?

But then, the government need only snag a conviction on one of the “mélange” of offenses, and wrap up the punishment for the acquitted crimes in the same package.  And when the offense of conviction has a life sentence, the sky’s the limit, baby.  Load up the charges with everything they can throw against the wall, get one conviction, and the defendant is a goner. Ba-bye.

With Judge Brett Kavanaugh’s support, Judge Millett rails against the obvious, that to allow acquitted conduct sentencing is to reduce trials to a farce.  What’s the point of an acquittal if the defendant can be sentenced for the crime anyway?  Why waste the jury’s time? What purpose is served of the constitutional right to trial, to effective assistance of counsel, to proof beyond a reasonable doubt, if the payoff at the end is you’re screwed no matter what?

In short [written un-ironically], allowing jury-acquitted conduct to increase a defendant’s sentence places defendants and their attorneys between a proverbial rock and a hard place: a hard-fought partial victory—even, as here, a substantial win on the majority of counts—can be rendered practically meaningless when that acquitted conduct nonetheless produces a drastically lengthened sentence. Even our court, though bound by precedent, has acknowledged the unfairness inherent in that result.

Judges Millett and Kavanaugh offer two admonitions. The first is directed toward the Supreme Court, calling for it to put an end to this substantive and constitutional travesty. Make jury verdicts mean something. Stop the government from losing, yet winning. Respect the defendants’ constitutional rights rather than engage in judicial sophistry to circumvent the wasted words in the Bill of Rights and screw the sucker anyway.

The second is directed at trial judges.

Given the Supreme Court’s case law, it likely will take some combination of Congress and the Sentencing Commission to systematically change federal sentencing to preclude use of acquitted or uncharged conduct.

Importantly, however, even in the absence of a change of course by the Supreme Court, or action by Congress or the Sentencing Commission, federal district judges have power in individual cases to disclaim reliance on acquitted or uncharged conduct.

While they may agree that systemic change must come from above, there is nothing that prevents district judges from refusing to participate in this sham. Just because they can sentence based upon acquitted conduct doesn’t mean they should, and doesn’t mean they can’t refuse to be complicit in this affront to the Constitution.

When the jury finds a defendant not guilty, it either means something or it reduces the system to a farce. And if the system if a farce, so too are you, judge.

H/T Cristian Farias

11 comments on “Just Because He’s Not Guilty

  1. Jay

    Strong words. Totally wrong, but strong. There’s no Sixth Amendment prohibition on using acquitted conduct at sentencing. That’s moronic. If anything it would be a Due Process violation or a double jeopardy issue. The jury requirement from Blakely is a different animal. That’s tantamount to saying a judge cannot consider anything at sentencing except the crime that was proven at trial. May as well get rid of judges and have juries do the sentencing. But based on your past posts, I doubt you’d want that. Then again, considering how useless federal judges have proven to be at sentencing, maybe you would.

    1. Mort

      That’s tantamount to saying a judge cannot consider anything at sentencing except the crime that was proven at trial.

      What, exactly, is wrong with that?

      Hell, how about we limit it to “crimes for which the defendant was convicted”?

      Because you seem to think that wouldn’t be a good standard.

  2. Damon Chetson

    Jay is absolute right. And wrong. Right in that since the beginning of time, Judges have always been able to take into account a criminal defendant’s entire history, including what we now term “relevant conduct.” The sentencing guidelines have a psychological component: they justify judges maxing people out on uncharged conduct. The give judge a putatively logical reason to jack them up, then upwardly depart, if they are especially “deserving”. Quotes are in here for a purpose.

    What is a “quick” fix to these problems. Federal laws that don’t have enormous swings. 0 to 40. Shit man, when I sit down with a client and say to him, this is your swing, but here’s where the guidelines put you, take your pick. That’s why the court system is littered with 2255s.

    Tighter restrictions on swings. Genuine plea bargaining where we can agree on a sentence within a range. Get rid of man mins. And, of course, fewer crimes. This is how to solve the problem.

    1. SHG Post author

      I marvel at how often young lawyers remind me of the parable of the blind man and the elephant. You and Jay make the same mistake, except you’re touching different parts of the elephant, and neither of you can see the elephant as a whole. There are no quick fixes. I look forward to the day when you have a mature, fully-conceived thought and realize how simplistic and myopic this comment is.

  3. Ken Mackenzie

    From the outsider’s perspective, this practice is mad. Just batshit crazy. So crazy that I reckon if you told lawyers practising in criminal law in Britain or Australia that this was the law of the United States they would simply refuse to believe you. “Don’t Americans have a constitutional right to trial by jury?”

    1. Patrick Maupin

      Seems batshit crazy to me, as well. Texas is one of (apparently) five states where a defendant can have the jury do the sentencing phase (if he’s not unlucky enough to be facing federal charge). FWIW, there’s an interesting paper by Morris B. Hoffman that discusses some of these issues, called “The case for jury sentencing” and a google search for that paper will bring up interesting cases where juries have begged judges to be lenient.

      1. Ken Mackenzie

        Juries deciding sentences is something else again. People should not be punished for a crime if they’ve been found not guilty of the crime. Punishment should be imposed for a crime only if a crime has been proved beyond a reasonable doubt. (There’s a thread on Reddit today “What is the most bullshit sounding true fact that you know?” Acquitted conduct sentencing in the USA is my submission.)

        1. Patrick Maupin

          Jury sentencing is no panacea. If the jury had done the sentencing, they might have come down on the harsh end of the range. But it certainly seems unlikely they would deliberately add years for something they decided the defendant was innocent of.

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