It’s valuable for a knowledgeable person to take the contrarian view* of something that almost everyone finds unconstitutional and anathema to foundational notions of legal propriety, so it’s good that former AUSA, George Washington Law adjunct and Washington Post columnist Randall Eliason challenged the near-universal view that sentencing defendants for conduct underlying a crime for which the jury acquitted is wrong.

My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges.  There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t.  If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it.  Judges are not mere passive conduits through which prosecutors work their will.

Sentencing judges have seen the same evidence as the jury.  They are trained lawyers, far more experienced at evaluating evidence than jurors are.  They may know things about the case and about the defendant that the jury, for various legal reasons, was not allowed to hear.  They are in a strong position to make their own evaluation of the evidence and appropriate findings about the defendant’s conduct.

The legal mechanics of acquitted conduct sentencing are well established, that the crime upon which a defendant is sentenced must be proven beyond a reasonable doubt to a jury, but the additional information, called “relevant conduct,” need only be proven by a preponderance of the evidence to the judge. If a defendant is acquitted of all charges, he walks out. But if he’s convicted of one count and acquitted of all others, the judge can consider the conduct underlying all counts, including those for which he was acquitted, in sentencing the defendant for the one count of which he was convicted with the limitation that the sentencing cannot exceed the statutory maximum for that charge.

Eliason’s argument is that judges know what they’re doing so let them have the flexibility to use all, some or none in forming a sentence.

This is what we want judges to do.  Booker restored much of the essence of judging: the ability to evaluate all the facts and circumstances and fashion the appropriate sentence for a particular defendant, not unduly bound by rigid rules, exercising both justice and mercy.  Trusting the judge to do that includes trusting her to decide what facts are relevant to the defendant’s sentence, even when a jury may have rejected some charges….

Creating rules to ban the use of acquitted conduct at sentencing would improperly tie the hands of all judges in all such cases.  It would require judges to ignore facts right in front of them that are directly relevant to determining the appropriate sentence.  It would result in greater sentencing disparity and in sentences that do not truly reflect the totality of a defendant’s conduct.

Putting aside the stunning faith Eliason has in judges’ sentencing skills, despite the fact that sentencing is inherently voodoo and most judges suck at it, although only a few are honest enough to actually admit it, he neglects to consider the overarching statutory considerations of 18 USC § 3553(a), the Parsimony Clause.

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.

The point here, and set forth in the subsequent statutory considerations, is that the law requires the judge to sentencing solely for the offense of conviction, and expressly states that a sentence shall be “sufficient, but not be greater than necessary,” to satisfy the sentencing factors. A defendant’s history and characteristics are to be considered. But nowhere does it provide that the facts upon which a jury acquitted are either history or characteristics. Accordingly, Eliason doesn’t rely on the language of the statute, but on the jargon of the current fashion trend.

In the movement for sentencing fairness and equity, that would be a step backward.

He’s not wrong in arguing that we have no basis upon which to conclude that the jury acquitted because it did not find a fact necessary to conviction to be proven beyond a reasonable doubt. We have no clue why the jury reached its decision. From that, Eliason argues that the fact finding should thus be punted to the judge since we cannot say with certainty that the jury rejected any particular fact. Essentially, the argument is that in the face of ignorance, we should default to allowing a judge to impose a harsher sentence because we cannot say with certainty that the jury rejected a fact.

But the parsimony clause informs us to default the other way, to presume the jury’s verdict was that the defendant did not engage in any of the conduct alleged by the prosecution because we can’t say with certainty that the jury found otherwise.

On the constitutional level, the jury’s verdict is paramount when it comes to convicting a defendant. When the issue is put to the jury, no judge can override a verdict of acquittal because those dumb jurors got it wrong. The judge is every bit as “trained” and “experienced” as Eliason raised with regard to sentence, and yet the Constitution says tough nuggies, if the jury acquits, that’s the end of it.

The reason that acquitted conduct sentencing is wrong isn’t because the defendant didn’t, in some existential sense, engage in bad conduct for which punishment is deserved, but because tough nuggies, that’s the end of it. It’s what the Constitution demands. It’s what the Parsimony Clause demands. If there is to be an error at sentencing, it should always be in the defendant’s favor because that’s how our system is supposed to work, Eliason’s plea for fairness and equity notwithstanding.

*Others taking the contrarian view include Bill Otis and Kurt Scheidegger, but unlike Eliason, few would consider their views on any criminal law subject “knowledgeable,” given that their only position is “burn the defendant” regardless of law, issue or reason.