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July 24, 2006

Sincere questions about acquitted conduct sentencing

On Friday, the DC Circuit in Dorcely (discussed here) and the 11h Circuit in Faust (discussed here) both approved of district courts relying on acquitted conduct to enhance a sentence.  I understand the legal argument that the Supreme Court's work in the 1949 Williams case and the 1997 Watts case suggests that the Constitution permits judges enhancing sentences based on conduct that the jury rejected as a basis for a conviction.  But I do not fully understand why this issue does not generate more attention and scrutiny.

Significantly, Congress has never made a formal policy decision that federal judges should base sentence increases on acquitted conduct.  Indeed, provisions of 18 U.S.C. § 3553(a) suggest acquitted conduct should not be considered.  For example, 3553(a)(6), by requiring consideration of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," suggests judges should not consider conduct for which a defendant has been found not guilty.  Also, 3553(a)(2)(A) speaks of a sentence "promot[ing] respect for the law."  Does reliance on acquitted conduct promote respect for the law?

Related, here are some other (non-constitutional) questions that I often think about when acquitted conduct is used in federal sentencing:

1.  When passing the Sentencing Reform Act  in 1984, did members of Congress desire or even expect that acquitted conduct would be used to enhance sentences?

2.  Would Congress today pass a new law expressly calling for acquitted conduct to enhance sentences if the SRA was now to be interpreted not to permit such enhancements?

3.  In light of constitutional history and the role of juries, why should the burden be on defendants to show that acquitted conduct enhancements are improper?  Don't rule of lenity and/or constitutional doubt doctrines suggest that the SRA should now be interpreted to disallow such enhancements?

4. Is anyone really proud of a legal system that relies on acquitted conduct to enhance federal sentences?  Put another way, is anyone endorsing this rule for Iraq's new legal system?

UPDATE:  This recent comment to a prior post captures my feelings on this issue effectively:

Now I understand why parole boards can rely upon unproven allegations when making decisions against the granting of parole.  As a chaplain, I never understood the fairness of this. As a student of this blog, I am amazed that all you lawyers who express justice permit this to happen.

July 24, 2006 at 06:32 PM | Permalink


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I used to think that we simply needed to wait until someone famous was punished for acquitted conduct for this to become a national issue, but apparently, the Mayor of Atlanta isn't important enough to catch the imagination. Maybe if a movie star faced that plight?

Posted by: ohwilleke | Jul 24, 2006 8:22:59 PM

I am federal defendant who survived a pogrom of legal violence (four separate criminal trials) which included enhancing my current supervised release because I prevailed in a separate criminal action in San Francisco that was unrelated to the charges I was convicted on in Tampa, Florida. In fact, 5th Amendment Double Jeopardy attached when the criminal indictment against me in San Francisco was dismissed with prejudice after 7 years of fighting and would not take any deals. As I was not charged with the acquitted conduct in Tampa, Florida nor did the jury find me guilty of this unrelated conduct, I was barred from this acquitted conduct, which is my livelihood, because I would not cooperate with the IRS. It appears when one runs afoul of a politically minded prosecutor, one is going to prison, the law be damned. The circuit courts seem to be nothing more then extensions of the prosecutor as any of his misconduct is deemed "harmless error" and the conviction affirmed. God Help Us All!

Posted by: Stealth is the Word to Avoid Retaliation | Jan 1, 2007 7:32:49 PM

Praying the plumber will be able to retrieve my ring in the am.....fingers crossed thanks.

Posted by: charms thomas sabo | Dec 16, 2010 3:28:27 AM

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