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July 5, 2011

Several sentencing reasons Casey Anthony should be thankful she is not in federal court

Ever the sentencing nerd, my chief reaction to today's surprise verdict in the high-profile Casey Anthony murder prosecution (basics here and here) was that Anthony should be very thankful (while I am a bit grumpy) that her sentencing is forthcoming in state court rather than federal court.  Savvy and regular readers know that this reaction is due largely to the serious sentencing terms available for the federal offense of obstruction of justice and the ugly reality that the federal guidelines require consideration of acquitted conduct at sentencing. Let me briefly explain.

To begin, Casey Anthony should be pleased she will learn her state sentencing fate later this week, rather than having the process play out over many months as is the federal sentencing norm.  (This reality essentially eliminated any defense need to seek Anthony's release pending sentencing.)  Though there are often benefits from an extended sentencing process in many cases, sentencing speed seems to help Anthony because this case carries so much emotion and because the jury verdict is already  so widely questioned.

More substantively, Anthony faces sentencing on only four Florida misdemeanor counts based on her lies to police during the investigation of her daughter's disappearance.  In the federal system, such lies might have been charged as a felony count of obstruction of justice, and then each conviction would carry a five-year maximum prison term.  In Florida state court, Anthony is looking at a maximum prison term of four years (a one-year max on all four misdemeanor counts of conviction); were this matter in federal court, she could have been facing up to 20 years total imprisonment based on four lies to authorities.

Most critically, the federal sentencing guidelines would instruct a judge to sentence Anthony based essentially on the crime he believes, based on a preponderance of evidence, she covered up even after a jury has acquitted her of that crime.  In other words, it is not only possible, but surprisingly common, for a federal judge to sentence a defendant for a murder that the defendant has been acquitted of!

Regular readers are no doubt tired of hearing my complaints about the use of acquitted conduct to increase sentences dramatically in the federal courts (some of which are linked below). But my sense is that very few persons other than federal criminal practitioners realize that federal law not merely allows, but often urges, sentences enhanced on the basis of acquitted conduct. This is why I am a bit grumpy that Anthony is not to be sentenced in federal court: if she were, the practice of acquitted conduct sentencing would be in full display in the highest-profile criminal case in many years.

Related posts on uncharged or acquitted murder sentencing enhancements as well as other examples of acquitted conduct sentencing in the federal sentencing system:

July 5, 2011 at 11:45 PM | Permalink

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Comments

I haven't paid much attention to this case, but after reviewing a few of the reactions online to the verdict, I'm not so sure many people would be dismayed if a court relied on acquitted conduct to sentence her. There seems to be a consensus, at least among the loudest commenters, that she was guilty, so they would welcome a sentence enhanced by the acquitted conduct.

Posted by: C.A.J. | Jul 6, 2011 12:48:19 AM

loved this

"Most critically, the federal sentencing guidelines would instruct a judge to sentence Anthony based essentially on the crime he believes, based on a perponderance of evidence, she covered up even after a jury has acquitted her of that crime. In other words, it is not only possible, but surprisingly common, for a federal judge to sentence a defendant for a murder that the defendant has been acquitted of!"

seems pretty much positive proof the u.s govt is now a crimnal govt just like gadaffhi's in libya! LOL since this is a DIRECT violation of the U.S. CONSTITUTION!

Posted by: rodsmith | Jul 6, 2011 1:52:48 AM

By allowing the use of acquitted conduct, the SC is implying guilty people are going free.

The same logic should apply to the classification of prisoners according to their original indictment and not according to their adjudicated plea bargain agreement. This classification would be used for assignment to a specific prison or unit in a prison. It would be used when mass prisoner releases are mandated by a court, preferably of non-violent people.

The FBI may lie, posing as fences of stolen goods, as contract killers, as terrorists, etc. The SC has affirmed several times. I suppose silence is the best response to the FBI's coming around. Still seems unfair. Then mere mistaken statements will be charged as lying. The viable alternative to silence would be to question the agents on their feminist beliefs, their socialist beliefs, their hatred of freedom, their lawyer training which turned them into dumbasses believing in supernatural doctrines, their forbearance of illegal alien gangs that behead people that offended them, their PC caused failure to stop 9/11.

Posted by: Supremacy Claus | Jul 6, 2011 6:54:00 AM

Three things on this: One, the sentencing disparity you describe brings to mind the recent SL&P post on 'cruel and unusual federal punishments.' Two, one doubts federal prosecutors would have pursued capital murder with so little evidence. And three, why even have trials if it's okay to punish defendants for acquitted conduct, and why would you be "grumpy" that state prosecutors don't get that second bite at the apple? I've never understood how punishing acquitted conduct isn't straight up double jeopardy.

Posted by: Gritsforbreakfast | Jul 6, 2011 7:29:57 AM

It was in the Richard Bailey federal case (regarding, ordinarily, a state issue of murder...of Helen Brach) that U.S. District Court Judge Milton Shadur (he of the kindnesses misdirected towards Chicago aldermen) enhanced Bailey's sentencing by way of determining Bailey was guilty of Brach's murder.

Posted by: FluffyRoss | Jul 6, 2011 8:36:04 AM

"Regular readers are no doubt tired of hearing my complaints about the use of acquitted conduct to increase sentences dramatically in the federal courts"

Not at all sir and I, for one, hope that you continue doing it.

Posted by: Thomas | Jul 6, 2011 11:57:54 AM

I am a defense attorney in Cincinnati, OH.

I have a somewhat radical resolution to the problem of acquitted conduct being used to increase sentences in the federal system. Give the power to the jury. In addition to the traditional options of "guilty" and "not guilty," the jury may find the defendant "innocent" of a given charge. The "innocent" finding means that the jury has found by a preponderance of the evidence that the defendant did not commit the crime charged. Thus, the judge would not have the ability to increase the sentence based on that conduct. This solution still allows the jury to find the defendant "not guilty," which of course permits the judge to perform his/her preponderance test for sentencing.

Posted by: ChadZ | Jul 6, 2011 3:14:50 PM

Thomas:

I second you vociferously, buddy!

Posted by: John Marshall | Jul 6, 2011 8:12:06 PM

ChadZ:

The Scottish judicial system has something similar to what you are proposing - Guilty; Not Guilty (?); and Not Proved. Having said that, I like our dichotomous system. As you know well, our plea system - in many jurisdictions - has three choices: Guilty; Not Guilty; and Nolo Contendere. Nolo contendere is in effect a guilty plea as regards many other subsequent proceedings.

Posted by: John Marshall | Jul 6, 2011 8:24:48 PM

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