Judge Gertner speaks on acquitted conduct

As detailed in a powerful Wall Street Journal article last year (detailed here), the federal sentencing guidelines' relevant conduct rules have historically required judges to consider so-called "acquitted conduct" at sentencing, and the Supreme Court in its 1997 Watts decision declared this practice constitutionally sound.  But Blakely and Booker made Watts a questionable precedent, and today US District Judge Nancy Gertner continued to justify her place in my Sentencing Hall of Fame by exploring acquited conduct post-Booker through a decision in US v. Pimental, No. 99-10310-NG (D. Mass. Apr. 15, 2005). 

In Pimental, which can be downloaded below, Judge Gertner discusses at length "the continued vitality of the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997), which upheld an increased sentence for the defendant based on acquitted conduct, in light of its recent decision in Booker."  Here are just a few highlights from a terrific opinion tackling very important issues:

United States v. Booker substantially undermines the continued vitality of United States v. Watts both by its logic and by its words.  It makes absolutely no sense to conclude that the Sixth Amendment is violated whenever facts essential to sentencing have been determined by a judge rather than a jury, Blakely v. Washington, 124 S.Ct. 2531, 2538 (2004), and also conclude that the fruits of the jury’s efforts can be ignored with impunity by the judge in sentencing....

Sentencing today — even post-Booker — is still profoundly influenced by the rules, namely the Guidelines. That is what the remedy opinion admonishes; that is what the post-Booker case law suggests.  It is, in effect, a hybrid regime — neither purely discretionary nor mandatory Guidelines. And that fact has certain consequences in terms of the significance of acquitted conduct, and more generally, the procedural protections at sentencing.

To consider acquitted conduct trivializes “legal guilt” or “legal innocence” — which is what a jury decides — in a way that is inconsistent with the tenor of the recent case law.... when a court considers acquitted conduct it is expressly considering facts that the jury verdict not only failed to authorize; it considers facts of which the jury expressly disapproved....

Even if Watts emerged unscathed from Booker, and a judge may consider all facts, including acquitted conduct, the standard of proof to be applied should be beyond a reasonable doubt.  As I noted above, we are in a hybrid regime, neither fish (totally indeterminate) nor fowl (totally mandatory.) Whether the Guidelines are presumptively reasonable, carefully considered, or something in between, they continue to play a critical role.  Certain facts like the amount of loss continue to assume inordinate importance in the sentencing outcome.  So long as they do, they should be tested by our highest standard of proof.

Download gertner_pimentalsentenmemo.pdf