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March 23, 2007

High-profile attack on acquitted conduct

Today's New York Sun has this article by Josh Gerstein, entitled "Al-Arian Asks Supreme Court To Overturn His Sentence," which spotlights a high-profile cert petition raise complains about a claimed sentence increase based on acquitted conduct. Here are details:

A Florida college professor who pleaded guilty to a charge of providing services to Palestinian Islamic Jihad, Sami Al-Arian, is asking the Supreme Court to overturn his 57-month prison sentence.

In a petition filed earlier this month, a lawyer for Al-Arian argued that the judge improperly punished the former University of South Florida professor for conduct that a jury acquitted him of during a six-month trial in 2005. "The record of the … sentencing hearing unambiguously demonstrates that the sentencing court did hold ‘acquitted conduct' against the defendant, to justify extending his incarceration for nearly a year," Al-Arian's attorney, C. Peter Erlinder, wrote. "It is difficult to imagine a clearer case for the need for protection against judicial hubris."

I am quoted in the article saying that SCOTUS should take up the issue of acquitted conduct sentence increases.  But, as I also said to Josh Gerstein, the facts of the Al-Arian case may not present the best vehicle for the Justices to examine this issue.

Some recent posts on acquitted conduct sentence increases:

March 23, 2007 at 08:59 AM | Permalink


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Tracked on Mar 23, 2007 10:05:38 AM


It is very very hard to feel sorry for this guy. Good riddance.

Posted by: | Mar 23, 2007 9:12:32 AM

So, what role do you see for the jury? You obviously don't think that jury trials serve any purpose in our republic. You also think that their decisions should be accored little or no weight.

Just say what you feel.

Posted by: S.cotus | Mar 23, 2007 9:48:02 AM

Blakely/Booker did not intend to and does not restrict judges from taking acquitted conduct into account, as long as the final sentence imposed does not go beyond a sentence supported by the facts found by the jury beyond a reasonable doubt.

Posted by: Brian | Mar 23, 2007 10:38:28 AM

I am not so sure that my comment says word one about my views of juries. I have posted before my strong support of Apprendi and its progeny, and have indicated my dislike of sentence enhancement with acquitted conduct. That said, I don't feel sorry for this jerk, and I am glad that he is being deported (hence the good riddance statement). In a sane world, those who knowingly raise money for terrorists would simply be executed.

Posted by: | Mar 23, 2007 10:51:39 AM

As would all drunk drivers, and pretty much everyone else convicted of a crime.

The idea that a judge can use "facts" the jury rejected - in other words, stuff that didn't happen - to enhance a sentence is so patently rediculous it shouldn't even merit discussion.

Posted by: Anon | Mar 23, 2007 10:59:20 AM

Of course, you're missing the whole universe of facts that a jury might not even see that a judge has always been allowed to take into account.
Do you think judges didn't take those facts into account in sentencing before the sentencing guidelines even existed?

Posted by: Brian | Mar 23, 2007 11:08:35 AM

The nameless one writes: "I have posted before my strong support of Apprendi and its progeny...." Because you choose to post without even a "nom de blog," much less your real name, we have no idea what you posted before.

An acquittal means that the jury did not find a fact proven beyond a reasonable doubt. It does not mean that the jury found the allegation is false. So long as sentencing facts may be considered if proven by a preponderance of the evidence, a prior finding that they have not been proven beyond a reasonable doubt ought not be preclusive.

Posted by: Kent Scheidegger | Mar 23, 2007 2:31:41 PM

Kent, but do you think that facts that raise a sentence (as you know, sometimes dramatically so) should be found on a more likely than not standard?

Posted by: Elson | Mar 23, 2007 2:58:15 PM

Kent, under that theory, why should they have to be proven by a preponderance, or by any standard? Why wouldn't it be enough to have someone - the prosecutor, the PO, a witness, anyone - allege that a particular fact happened?

If there's gonna be a level of proof required - and you seem to agree that there should be - it should be BRD.

Posted by: Anon | Mar 23, 2007 3:26:26 PM

I agree with Kent, but I think that, at the end of the day, there is something a little unseemly about the practice, but there's not a lot that can be done about it--it is legitimate.

The other issue is the extent of the "acquitted conduct". Juries determine elements--who knows what elements were rejected . . . . so the issue, once looked into, can be a lot more complicated.

Posted by: federalist | Mar 23, 2007 4:01:48 PM

My point, once again, is that so long as the preponderance standard is the law, acquitted conduct should not be off limits. Whether the preponderance standard should be the law is another question.

Posted by: Kent Scheidegger | Mar 23, 2007 4:04:23 PM

Kent, right, hence my question to you: should the preponderance standard be the law?

Posted by: Elson | Mar 23, 2007 4:06:17 PM

Maybe the answer is that judges should carefully evaluate their use of acquitted conduct in sentencing.

Posted by: federalist | Mar 24, 2007 1:29:53 PM

It seems very odd to have a set of rules of evidence for trials that is extraordinarily prissy about allowing logically irrelevant matters to come in, even if they may, in real life have probative value (like propensity evidence), while abandoning any pretense of respect for what should be logically relevant at sentencing.

Posted by: ohwilleke | Mar 26, 2007 7:12:30 PM

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