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August 6, 2007

Seventh Circuit blesses extreme acquitted conduct enhancement

Harlan J. Protass, who authors the Second Circuit Sentencing Blog, sent me this e-mail flagging a Seventh Circuit opinion of note from late last week that I missed:

Thought you would absolutely want to check out the 7th Circuit’s decision this past Friday in US v. Hurn, No. 06-3666 (7th Cir. Aug. 3, 2007) (available here).  It strikes right at the heart of the acquitted conduct issue.  He was tried on crack and powder charges.  He was convicted of the powder charge, and acquitted of the crack charge.  If sentenced purely on the cocaine charge, he would have received 27 to 33 months. He wasn't. Instead and based on acquitted conduct, he got 210 months. Wow.  And the 7th Circuit affirmed it.

In addition to being concerned about the Seventh Circuit's willingness to bless again an acquitted conduct enhancement, Hurn also applies the presumption of reasonableness to a crack guideline sentence despite the fact that the US Sentencing Commission has repeatedly said that the crack guidelines are excessive.  And the Hurn panel also rejected the defendant's claim that his very low IQ should be a significant mitigating consideration. 

In various ways, Hurn's affinity for the guideline range calculated based on acquitted conduct reveals the disappointing nature of post-Booker sentencing review for reasonableness.

August 6, 2007 at 10:30 PM | Permalink

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Comments

Utterly shocking! How can this be? How? Why have a jury trial at all? Why not just skip it and move straight to the sentencing hearing with a clear and convincing standard of proof?

What must the jury think?

What country is this that we live in? Is it still a country with a Bill of Rights?

Unbelievable.

Posted by: George | Aug 7, 2007 12:50:27 AM

He was convicted of the powder charge, and acquitted of the crack charge. If sentenced purely on the cocaine charge, he would have received 27 to 33 months. He wasn't. Instead and based on acquitted conduct, he got 210 months.

There's more than one way to fix a "disparity."

Posted by: | Aug 7, 2007 8:51:57 AM

George, this is exactly what I have been talking about. Why bother to have a jury trial when a judge can essentially disregard its decision? And how big a logical leap is it to have the jury acquit the defendant of ALL charges and the judge still decide he needs be imprisoned? If we can imprison people for things they didn't do, why do we need the formality of convicting them of "something?" Our society seems to have decided that logic is no longer relevant.

And if you are wondeering why I harass S.cotus, consider the statement he made last week in this blog: "For my money, this country was founded on "principles" found in the text of the constitution. (Maybe not even the bill of rights.)" I do not recall being taught in school that there was some question as to whether the Bill of Rights really applied.

I ask again, loudly, HOW DO YOU PEOPLE EXPECT US TO HAVE ANY RESPECT FOR THIS SO-CALLED JUSTICE SYSTEM WHEN ITS RESULTS CAN ONLY BE DESCRIBED AS ARBITRARY AND CAPRICIOUS?

Posted by: disillusioned layman | Aug 7, 2007 9:40:47 AM

Disillusioned, Whether you have “respect” for system of justice or not particularly relevant. What matters is whether people are willing to tolerate the way we do things in the US, and for the most part, people are. Sure, some people might not like particular results, but the “system” is complex enough that everyone can feel as if their grievances can be addressed, even if they lack the sophistication to understand what their problems really are.

Secondly, as I am sure that you know, when a defendant is acquitted of all charges, a judge (or judges) cannot revisit that verdict. The only question here is whether the facts adduced at trial, or elsewhere, can be used in setting a sentence higher than it would have been if they had not been so adduced.

Third, unfortunately, “civics” education in the public schools is pretty much a waste of time. Since they are not really aiming to send their students to law school, people figure that there is no point in writing texts which even bother to use terms of art the way other people do, yet alone expose kids to the discussions of the day. I mean, why does a kid need to know about the “doctrine of reverse selective incorporation” if he will end up flipping burgers?

Anyway, let me be clear on my point. It isn’t that complicated. 14th amendment equal protection post-dates the signing of the constitution and the ratification of the bill of rights by over a century. While the constitution was envisioned as a compact between the states and allocation of some federal and state power, and the bill of right was envisioned as a means to protect people from federal power, the post-civil war amendments were viewed as a way to reign in the evil in the south. It was not until later that the “rights” recognized in the “bill of rights” began being “incorporated” to the states (i.e. applied to the states as well as the federal government). The extent to which they applied is not 100% clear, though most people will always say, “sure, they all do.” Off the top of my head, the following are questionable areas of selective incorporation: 1) establishment clause (maybe this is just Justice Thomas); 2) the 2d amendment; 3) 8th amendment prohibition against unreasonable bail); and 4) the interrelationship between the ADA and the 11th and 14th amendments (i.e. Congress’s ability to abrogate state sovereign immunity in the name of the 14th).

Posted by: S.cotus | Aug 7, 2007 1:35:07 PM

"I do not recall being taught in school that there was some question as to whether the Bill of Rights really applied."

I do not recall being taught in grade school that the Bill of Rights is a charter of negative liberties against the federal government, rather than a series of absolute pronouncements (1. I can say whatever I want with no consequences, 2. I get a gun, etc), but I picked that up later on.

Posted by: | Aug 7, 2007 1:44:47 PM

S.cotus wrote: "Disillusioned, Whether you have “respect” for system of justice or not particularly relevant. What matters is whether people are willing to tolerate the way we do things in the US, and for the most part, people are."

1. The higher courts often claim maintaining respect for the law is vital.

2. If people are willing to tolerate the way we do things, then tell the juries the consequences and potential consequences of their verdicts.

Indeed, if the jury knew how this would turn out, they may have decided not guilty on all counts, which suggests the possibility that the people do not actually tolerate the way we do things, but are ignorant of how things are done. Interviews with the jury would be enlightening. My guess is they would be as shocked as I am.

Posted by: George | Aug 7, 2007 3:36:25 PM

The reason why I don’t particularly care whether a non-lawyer “respects” the judicial system or not, is that they are easily swayed by rhetoric or by events close to them. It is just a matter of chance whether someone becomes a conspiracy-theorist anti-government wacko, or a “trust the government” wacko.

Sure, courts claim that “respect for the law” is vital, but that is empty rhetoric. Because “respect” and “law” are completely nebulous terms, this statement is pretty much devoid of meaning.

While I do have my reservations about not telling juries what sort of jeopardy a defendant faces, there are many other things that juries are not told: about past conduct of the defendant, about his religion, whether this family is known for “causing trouble,” his voting record, unMirandized statements, etc. etc. etc. So, unless you are going to make the jury trial into a free-for-all, some judgments will have to be made about what information is shown to a jury, after a decision is taken to incarcerate people.

And, if you think jurors are “shocked” by the amount of time a defendant faces, maybe acquitting jurors would be “shocked” to learn that the well-dressed defendant they acquitted when they believed his story over that of another witnesses had a history of molesting dogs and wasn’t even Christian!

Posted by: S.cotus | Aug 7, 2007 3:50:13 PM

S.cotus, your dance of asides is confusing. Do you support the 7th's decision or not? We got there because the public is so easily manipulated and is ignorant, as this jury probably was, which would mean they may not actually tolerate the way we do things.

What percentage of the public knows that a person can be sentenced as if the jury found a defendant guilty even though the jury found the defendant not guilty?

All this condescending ivory tower talk completely misses the point of the propaganda used to confuse and manipulate voters. See the "Corporate-Sponsored Crime Laws" link.

Posted by: George | Aug 7, 2007 5:59:15 PM

S.cotus, have you ever serve on a jury panel? Well I have four times and believe me there are a lot of ignorant people serving on the panel. Would believe you some actually felt that they had to convict on a lesser charge when they acquitted them of the serious charges. They claimed they didn't want to look soft on crimes Some also said that "I have some doubts but the policemen don't lie, if he didn't do this crime he'd probably done it before." I can tell you all kind of things that goes on in the jury room. If you are a lawyer which I doubt, it floored me on how you would represent your client. If you are a prosecutor then we all know where you coming from. But if you are a judge and you have the power to destroy people lives then I pity anyone who goes before you. I have saved this for last, if you are a Law professor, then you are biased in your thinking. You seemed to have only one set of view. Now, that would mean you are a bad teacher... Enlighten us!

Posted by: | Aug 7, 2007 8:17:11 PM

George, To answer your question, the 7th’s decision, “Is what it is.” If I practiced criminal law in the 7th, I would have to treat it as “the law” unless it is overruled. (Which won’t happen any time soon.)

While it is easy to say that voters are “confused” or “manipulated” other people simply call that “educating” them. If I had to choose between believing rich people with credentials and poor people that insist that well-educated people are “manipulating” other poor people, I have to say that I would choose the rich people. Whatever the case, once you go down that road, you are going to have to try and rebut all the people that claim that the ACLU is “manipulating” people.

As to the next comment, I have never been on a jury. The rest of the insults directed at me don’t make any sense, so I wouldn’t begin to know where to start.

Posted by: S.cotus | Aug 7, 2007 8:23:54 PM

S.cotus, your losing all credibility and it is coming to the point it would be more worthwhile to listen to someone on parole who has direct knowledge.

"Is what it is." Good thing our Founders weren't so fatalist.

Again, how many people know that a person can be sentenced as if the jury found a defendant guilty even though the jury found the defendant not guilty?

In other words, how many people, rich or poor or middle class, as if that matters, educated or not, as if that matters, understand this law? My guess is very few. No wonder you want to keep it hush-hush and between lawyers.

On the other hand, almost everyone knows of the right to a trial by jury and knows of the double jeopardy clause. It would shock them. They may agree once aware of it, maybe not, but most would be shocked at first because it is so contrary to everything they learned about our criminal system in high school civics and on TV.

Posted by: George | Aug 7, 2007 8:45:05 PM

Ah, Gratiano, er, S.cotus, is at it again.

First, I don't think that the signing/ratification of the Constitution predated the passage of the 14th Amendment by over a cenutry. (Perhaps my math is off, me being a non-lawyer.)

Second, I didn't realize selective incorporation had anything to do with Congress' power to abrogate 11th Amendment immumity (different clauses, different issues, and the 11th Amendment is not generally thought of as part of the Bill of Rights). Perhaps, you could explain, as I am not a lawyer.

Posted by: federalist | Aug 7, 2007 8:59:44 PM

This brings to mind the insidious federal cross references, which are used predominantly (though not exclusively) in drug, firearm & child sex offense cases. Mark P. Rankin & Rachel R. May, Grid And Bear It, 30 Oct. Champion 52 (2006) (giving numerous scenarios where seemingly low to mid-range sentences can suddenly explode to double or triple the time when the applicalbe cross references are applied).

Cross references are like landmines. Defendants are found guilty of one crime and then sentenced severely for a completely different act. Cross references direct the sentencing court to a guideline other than that which applies to the offense of conviction, if such guideline is more applicable to the defendant's actual conduct. As long as the sentence is within the statutory range proscribed for the offense of conviction, the court may find that the cross reference applies by a preponderance of the evidence standard, even if the defendant has been acquitted of the same conduct.

See, e.g., United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995) ("A sentencing court may consider relevant conduct of the defendant for purposes of making Guidelines determinations, even if he has not been charged with - and indeed, even if he has been acquitted of - that conduct, so long as the conduct can be proved by a preponderance of the evidence.")

Posted by: David W. | Aug 8, 2007 4:26:25 AM

Sorry, I meant to say, “about.” My point about the 14th amendment and 11th amendment sovereign immunity is fairly simple. Amend. XIV ends with § 5, which reads “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The problem is that the 11th amendment reads “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Which is generally construed to mean that you can’t sue a state in federal court. But, of course, there are exceptions. Namely, things like § 1983, which was adopted at the same time as the 14th, and most people think comes under § 5. But, there are gray areas: like ADA cases where Congress passes a statute requiring that, amongst other things, states provide certain accommodations to disabled people. Disabled people, it can be argued, were not really contemplated by the 14th amendment.

So far, the Supremes have, in US v. Georgia given some (but not much) clue as to handle this, that is the court should analyze, “(1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.”

David, While I generally agree with you, I should note that most consider determination of a sentence not to be so much about the "actus" but rather about the characteristics of the person. This cuts both ways. On the one hand, people can often avoid harsher sentences by claiming that they were abused or somehow injured (which isn't generally a defense to a crime), but it also means that acquitted conduct can come in. And, as I have said many times in the past, this also explains why richer people get lower sentences: society values their non-criminal lives and conduct more than it values the lives and conduct of the poor.

Posted by: S.cotus | Aug 8, 2007 8:13:04 AM

George, Guess what? Since I live and practice in the real world, and my power to overturn federal caselaw is limited to arguments before courts (and, perhaps, to hiring lobbyists or answering questions from Congresspeople), I move very slowly before forming an opinion on a judicial opinion which hurt/helped someone that wasn’t my client. It would be irresponsible of me to come up with a knee-jerk reaction. In time, however, I may develop a view on this issue beyond acknowledging that it is the law. But, it really doesn't matter whether you think I am "credible" or not.

Since I don’t really talk to many non-lawyers, I wouldn’t know what they know and do not know. I can’t just hit the “close” button, because they keep talking about their pet theories of injustice and all this crap. Someone on here (or maybe another blog) proposed that lay peoples’ knowledge lags about 20-25 years behind Supreme Court decisions. That seems to make the most sense.

Anyway, perhaps you raise an interesting theoretical idea: that jury trials should be more free-form. Prosecutors could introduce all sorts of evidence that is substantially more prejudicial than probative, defendants could introduce evidence of what jails are like and the “real” sentence they would receive. I don’t know if the world would be too much different.

Posted by: S.cotus | Aug 8, 2007 8:20:21 AM

S.cotus, what was your point? You added the 11th Amendment to the Bill of Rights and you put the interplay between the 11th Amendment and the 14th Amendment in a discussion about selective incorporation. The scope of Congress' ability to abrogate 11th Amendment immunity has nothing to do with selective incorporation. Even this non-lawyer knows that.

Posted by: federalist | Aug 8, 2007 10:23:05 AM

I don’t think I was making that precise point (though it does raise an interesting issue). I was merely saying that 1) people don’t need to know about RSI; and 2) the interplay between the 11th and 14th is in flux.

Posted by: S.cotus | Aug 8, 2007 11:34:17 AM

This is what you wrote:

"It was not until later that the “rights” recognized in the “bill of rights” began being “incorporated” to the states (i.e. applied to the states as well as the federal government). The extent to which they applied is not 100% clear, though most people will always say, “sure, they all do.” Off the top of my head, the following are questionable areas of selective incorporation: 1) establishment clause (maybe this is just Justice Thomas); 2) the 2d amendment; 3) 8th amendment prohibition against unreasonable bail); and 4) the interrelationship between the ADA and the 11th and 14th amendments (i.e. Congress’s ability to abrogate state sovereign immunity in the name of the 14th)."

Your dissembling is pathetic.

Posted by: federalist | Aug 8, 2007 12:42:31 PM

Federalist, You need to calm down. I was not claiming that RSI and 11th SI were the same (but now you got me thinking about some other issues). Have a nice day.

Posted by: S.cotus | Aug 8, 2007 1:01:24 PM

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