How Angry Guys Explain Acquitted-Conduct Sentencing (and why they’re wrong)

After the Supreme Court’s denial of cert in Jones, there appeared to be a sudden shocked recognition that people get sentenced for the crime for which they were just acquitted. This was by both lawyers and non-lawyers, who neither knew nor cared up to that point.  Readers here already knew exactly what this was about, but then, they’re usually ahead of the curve.

In a rush to catch up, there was a flurry of posts explaining what this meant. Few explained the logistics that justify this bizarre twist of law, some leaving one to ponder why they bothered at all.  But as is often the case, the boys at Crime & Consequences, Kent Scheidegger and Bill Otis, saw the opportunity and seized it.  Given the intuitive backlash to a piece of sentencing so important to their heart, this was an argument that needed to be made.  First, Otis’ shot:

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker. Two remedies were on the table in that case:  Requiring a jury’s judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can’t have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

This is a cynical argument and not a model of clarity. It assumes that there exists some right, some justification, for making sure that the path is clear to punish as harshly as possible, whether via mandatory guidelines or acquitted-conduct sentencing, as if it was inconceivable that both might be wrong for their own reasons.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn’t do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  —  as the defense bar routinely insists in every other context  —  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it.

This is a basic point, that a jury finding of not guilty is not a finding of innocence. The point is indisputable, but also doesn’t resolve anything. If a jury finds a defendant not guilty, then he remains in the status of presumptive innocence, not fair game for whatever a judge decides. The only way that status of presumptive innocence can be changed is by a verdict of guilty, and that didn’t happen.

Scheidegger’s approach does a better job of offering the nuts and bolts:

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

The key point is that as long as a judge sentences within the “legally allowed range” for the crime for which a defendant has been convicted (say a minimum of 20 and maximum of 40 years), where along that spectrum a defendant is sentenced is left to the judge’s discretion.  In the exercise of that discretion, a judge can consider other, related, conduct for which the defendant was not convicted, provided the sentence remains within the limits of the min and max for a convicted crime.

The judge cannot consider facts in sentencing that are arbitrary, but if he finds that related conduct is proven by a preponderance of the evidence, the standard for finding related conduct at sentencing to be sufficiently proven to incorporate in deciding where along the 20 to 40 year spectrum to sentence a defendant, the law allows the judge to do so.

Scheidegger’s argument in favor of this is a void. He writes:

Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

There is indeed a logical reason why it should. More importantly, there is also a systemic and substantive due process argument as well. Saying there is none doesn’t make it so.

First, the presumption of innocence, an axiom that goes unmentioned in the Constitution, unless and until a jury convicts is violated by acquitted-conduct sentencing (and related-conduct sentencing as well).

Second, as the Sixth Amendment guarantees a right to trial by an impartial jury, and as guilt cannot be found except by a jury, the circumvention of the jury requirement by a judicial finding offends this constitutional requisite.

Third, even if we are to assume that the judge, by being limited in his sentencing spectrum to the number of years he could otherwise impose for the crime of conviction, could sentence a defendant to the 40 year max because it’s there, because Congress authorized that number of years as the top end of a sentence for the convicted crime, and so the defendant has no right to complain that he got maxed out, the countervailing factors set forth in the Parsimony Clause, 18 U.S.C. § 3553, which begins:

The court shall impose a sentence sufficient, but not greater than necessary . . .

If the sentence cannot withstand reasonableness review based on the court’s explanation of the weight afforded the 3553 factors without findings of uncharged or acquitted crimes, then this methodology of circumventing the fabric of basic criminal law, that a defendant only be sentenced for the crimes for which he has been found guilty, violates the statutory justifications for imposing sentence at all.

And finally, substantive due process requires fundamental fairness, notwithstanding whatever technical rules the law imposes or allows. The confusion Scheidegger exhibits as to why this practice “remains controversial” is that society, those silly non-lawyers of which Bill Otis speaks, see this is wrong, as an affront to the respect upon which the legal system relies.

It’s controversial because people find this to be fundamentally unfair.  And that, alone, constitutes a pretty damn good reason for the Supreme Court to hold acquitted-conduct sentencing unconstitutional.  The zeal of those who believe that no sentence is too harsh, no punishment too severe, does not trump society’s rejection of acquitted-conduct sentencing as fundamentally wrong.


11 thoughts on “How Angry Guys Explain Acquitted-Conduct Sentencing (and why they’re wrong)

  1. paul

    What evidence supports your conclusion that “society[] reject[s] … acquitted-conduct sentencing as fundamentally wrong”?

    1. SHG Post author

      The anecdotal observation of reaction to the denial of cert in Jones has been overwhelmingly negative to acquitted-conduct sentencing.

        1. SHG Post author

          You would need more info before reaching that conclusion. That said, it’s as good as there is for now, and there being no indication to the contrary, I’m sticking with it.

          1. paul

            “No indication to the contrary”?

            How about the fact that 6 Supreme Court justices (who often are called upon to be the voice of “society”), as evidenced by the denial of cert, have no problem with permitting acquitted-conduct sentencing to continue?

            Pretty good circumstantial evidence that “society” is not as deeply offended by the constitutional practice as are you.

            1. paul

              @ SHG @ 4:51 pm

              When it comes to determining what is reasonable under the Fourth Amendment by applying the second prong of Katz’s REP test — to wit, determining if “society” would accept a subjective expectation of privacy as reasonable — the Court isn’t merely the proxy, but the voice.

              The same is true when the Court determines when substantive due process applies — to wit, when the challeged government practice would “shock the conscience” of, get ready SHG, society.

              I can go on ad nauseum, SHG, but I won’t. I would suggest, however, that you ask Tribe if he could give you a pro bono boner-up Con Law 101 course.

            2. SHG Post author

              Ah, I see your point now. The Supreme Court is the proxy for society because it has so held. Well then, that settles that.

  2. A.G.

    The longer I practice, the more I realize that far too often, the Court’s desired outcomes drive means, irrespective of law or Constitutional norms. Is it not equally unconsitutional if, for example, a prosecutor dismisses more serious charges in exchange for a plea, the plea is accepted by the court, and then in sentencing, the court “finds” that the elements of the now dropped, yet more serious charges, have been “proven” (despite no testimony being put on) to justify an aggravated range sentence?

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