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May 25, 2016

Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert

May 25, 2016 at 10:28 AM | Permalink

Comments

92 year sentence for $16K fraud seems problematic.

Posted by: federalist | May 25, 2016 10:32:45 AM

What the Justice Department and a U.S. District Judge have done to this man is just unconscionable, and is wholly inconsistent with the fundamental machinery of our system of justice.

Posted by: Jim Gormley | May 25, 2016 10:59:23 AM

"persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime"

adding insult to injury

The argument made might have open-ended implications, but the breadth of the punishment is so extreme for the convicted crime, it seems the sort of thing where you might get at least five justices to accept the case & write a limited opinion to deal with such excessive cases. The line drawing issues might trouble a few justices, but the case does seem blatant enough to warrant it.

Posted by: Joe | May 25, 2016 11:18:31 AM

"persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime"

adding insult to injury

The argument made might have open-ended implications, but the breadth of the punishment is so extreme for the convicted crime, it seems the sort of thing where you might get at least five justices to accept the case & write a limited opinion to deal with such excessive cases. The line drawing issues might trouble a few justices, but the case does seem blatant enough to warrant it.

Posted by: Joe | May 25, 2016 11:18:35 AM

I agree that such extreme sentencing enhancements based on allegedly relevant conduct are both improper and shocking, but I think you're stretching things a bit by implying that the prosecutors ambushed Hebert with the murder allegations after he took the plea. The Fifth Circuit decision makes clear that allegations regarding the murder were included in paragraph J of the indictment, so while Hebert wasn't actually charged with the murder, he knew the government would try to pin it on him.

Posted by: Jonathan Edelstein | May 25, 2016 12:02:18 PM

Sorry for duplicate (posts sometimes don't save at first) ... appreciate the last comment too -- these excesses at times have caveats like that which help clarify just what is at issue. Will be interested to see what the professor thinks of it.

Meanwhile, 2A rights in jail?

https://talkingpointsmemo.com/livewire/bundys-want-better-jail-conditions

Posted by: Joe | May 25, 2016 12:07:58 PM

Mr. Edelstein, I think your point is well-taken, but even with the notice, what was he supposed to do, not plead guilty? It seems odd that the "notice" somehow makes the unfairness less, although it does take the air out of the "ambush" storyline.

Posted by: federalist | May 25, 2016 1:16:59 PM

Looks to me as though the DA and Judge are both traitors to their oath to uphold the Cobstitution abd i War time n9 less. Would seem to call for the ultimate punishment. Summary Execution as a warning to others... That is what they like using other defendants for

Posted by: Rodsmith3510 | May 25, 2016 1:46:14 PM

This is why God made rifles.

Posted by: BarkinDog | May 25, 2016 1:53:40 PM

Hate to beat a dead horse, but the problem here is sentencing ranges. If you have a sentencing range that allows a 92-year sentence for a $16,000 fraud, one day somebody is going to get that sentence based on his bad character.

You can't have it both ways. You can't complain that sentencing laws give too much power to prosecutor's to change the potential punishment by adding and proving additional "enhancing" facts (or opting not to prove those facts) while at the same time objecting to the judge considering anything other than the admitted facts.

A judge faced with Al Capone for tax evasion should be able to impose the maximum sentence because the defendant is Al Capone, and the evidence is enough to convince the judge that the tax evasion charge is the tip of the iceberg. What that maximum sentence should be should depend upon the degree of tax evasion. If you don't have a maximum sentence, then you have a very, very, very bad person getting a very, very, very long sentence for a relatively minor offense. That long sentence does not offend me given who is getting it, but it does take a lot of the power to enforce laws away from the executive and give it to the judiciary and minimizes the significance of the jury.

Posted by: tmm | May 25, 2016 1:55:56 PM

The "ambush" involves the Govt's eagerness to have Hebert not only "convicted" at sentencing, but also extremely/maximally punished for "intentional murder" after getting his guilty plea on various fraud charges. Specifically, at sentencing the Govt sought the stat max on all the fraud conviction counts consecutively --- 153 years of imprisonment! Ironically, the district judge here gave Hebert 60 years less than what the prosecution asserted was necessary.

Posted by: Doug B. | May 25, 2016 2:05:07 PM

Doug--ambush implies a lack of notice--here there was.

Posted by: federalist | May 25, 2016 2:28:21 PM

Whether or not this was an ambush is quibbling. Certainly, it was an unexpected development.

On the main topic I find myself in agreement with tmm. The underlying problem here isn't the acquitted conduct, the underlying problem here is a statute that allows for the imposition of a cruel and unusual punishment. The acquitted conduct is just the means that justified the ends in the judge's mind, but the ends could have been justified on the basis of some other means besides the acquitted conduct if the judge and prosecutors had been willing to put in the work.

So the normative question is whether the 92 years for the 16K fraud violates the 8A. Yes, it does IMO. A 92 year sentence is effectively life in prison for a non-violent crime with minimal victim impact. That is cruel and AFAIK it is unusual.

Posted by: Daniel | May 25, 2016 3:33:13 PM

Fair enough, federalist (and, for the record, I dickered a bit with the lawyers who co-authored this brief about the wording and contents of the brief). But my understanding of the record is that the defendant did not believe (nor have notice) that the feds would be seeking a stat-max sentence on all counts based on the allegation of intentional murder. The defendant knew that the feds thought him responsible for the fraud victim's disappearance, but I do not think he knew or even had substantive notice that the feds at sentencing were going to seek a sentence that would necessarily depend on him being "found guilty" of intentional murder.

Posted by: Doug B. | May 25, 2016 3:38:33 PM

"does not offend me given who is getting it, but it does take a lot of the power to enforce laws away from the executive and give it to the judiciary and minimizes the significance of the jury"

The second part does "offend" some people.

As to "who is getting it," who's to say? It is "un-charged, non-admitted, never-convicted" conduct. Not quite Al Capone. A rather heinous murder would be necessary for me to think 80+ years above the average is warranted for something like safety reasons. Loads of murderers get out in a fraction of that time. Convicted murderers.

Seems the problem is the "minor" offense can get you that level of punishment. It opens up this level of judicial power that will get deference in appeals.

Posted by: Joe | May 25, 2016 3:40:39 PM

"the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed"

I can see where people can think it is misleading.

Posted by: Joe | May 25, 2016 3:42:03 PM

The more I understand the system, the more upset I become about Al Capone getting that much time for tax evasion. We accept it because it's Al Capone, but there was nothing resembling the orderly rule of law in that case.

This case continues that problem. I think the solution is far narrower sentencing ranges based on the amount involved. But that would require micromanaging sentences and I know Judges don't like to do that.

Posted by: Erik M | May 26, 2016 2:04:30 PM

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