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July 13, 2007

Eleventh Circuit blesses acquitted conduct enhancement

The Eleventh Circuit decided to put a damper on what had been an exciting week for me by today affirming a conviction and sentence that I advocated against in US v. Campbell, No. 06-13548 (11th Cir. July 13, 2007) (available here).  Because I am involved in this matter, I will not comment directly on the panel's decision.  I would greatly welcome reactions and insights from readers, particularly as regards the panel's rejection of our claim that sentences based heavily on acquitted conduct reflect disrespect for the jury trial system.

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July 13, 2007 at 05:58 PM | Permalink


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I found that part of the opinion to be very poor: had Campbell been convicted of Charge X, he would have faced up to..." blah blah blah. The point was that he was not convicted of those offenses.
Also, how do courts know that a jury did not determine factual innocence? Acquittal may not mean innocence, but it certainly can. And "reasonable doubt" is effectively innocence. It is legal innocence, at any rate. For all we know, the jury simply nullified. Then later the judge decides "Well, if I was the trier of fact I would have determined that you did it...at least by a preponderance." Then suddenly relevant conduct boosts the sentencing range.
I understand the argument over the two evidentiary standards, but that should not apply when acquitted conduct is used so heavily. And it is pointless to speak of what "could" have been in Campbell's case. The jury didn't convict him of those counts, period.

Posted by: Alec | Jul 13, 2007 6:48:46 PM

Maybe the problem is more fundamental that that. Is it possible judges are able to sentences on acquitted conduct because of Constitutional Propaganda? In reverse, of course.

Sentencing on acquitted conduct is outrageous, contrary to everything our system of justice stands for, and yet when reading the decision, the defendant is lucky.

Maybe this decision stands for the principle that bad cases make for bad law more than anything else, more than any other legal principle.

There is hope. The consequences of unfettered executive and legislative branches, state or federal, are more and more apparent, and it is possible the judicial branch will see the light before it is too late. It's called a "balance of powers" for good reason.

Failing that, there is always the jury nullification our Founders praised.

Posted by: George | Jul 13, 2007 7:07:46 PM

Fixed link: Constitutional Propaganda.

Posted by: George | Jul 13, 2007 7:10:09 PM

Terrific decision. I only wish because of the Mayor's status as a public figure who owed a duty of honest services to the residents he served, would have been sentenced to a consecutive term of 30 months on the other count. Others who would do as he did need to be sent a message, and I am not sure this lenient sentence does that.

Posted by: rls | Jul 13, 2007 8:35:34 PM

George, I think that sentencing for acquitted conduct is something that sounds worse than it really is. Moreover, when you unpack the issue, there's a lot more than meets the eye--e.g., what conduct was the defendant actually acquitted of.

That said, I think that judges should tread lightly and carefully here. Perhaps there should be a requirement of special justification. I don't pretend to know the correct answer here, and I do agree that this is a bit troubling given the centrality of the jury to our criminal justice system.

Posted by: federalist | Jul 13, 2007 11:00:06 PM

I'm not a lawyer, so I'm less versed in the legal aspects of this than most. I will say that if I were a juror, my knowledge that the court can sentence based on acquitted conduct would in some circumstances lead me to vote to acquit on charges for which I felt the defendant was guilty beyond a reasonable doubt. I'm not saying I would always do this. I am saying that I would do it some of the time.

Of course, if the Court knew I had this opinion, it would disqualify me as a juror.

I think my belief above amounts to a statement that this rule decreases respect for the jury system. Because it amounts to saying that as a juror, I would act differently because I would feel my verdict was not being respected.

Posted by: William Jockusch | Jul 13, 2007 11:28:10 PM

The panel opinion is fine. Blakely and Booker only constitutionalize the statutory maximum. If the Mayor committed X crime, the jury so found beyond a reasonable doubt, and by statute, X crime is subject to a maximum penalty of Y, then there's no Sixth Amendment violation if the ultimate sentence imposed is Y or less.

The statutory max is the outer limit of the state's right to punish, and the Sixth Amendment doesn't impose any limit of which I'm aware on the reasons the state may give for choosing the ultimate sentence, so long as it's below the statutory maximum.

I can understand arguments related to substantive unreasonbleness, but I have trouble comprehending Sixth Amendment arguments like this made with a straight face.

Posted by: | Jul 14, 2007 8:51:32 AM

I've given this a bit more thought...

To put the original point more clearly, as I read Apprendi, Blakely, and Booker and the other cases in that vein, the only relevant question for Sixth Amendment purposes is whether the sentence exceeds the statutory maximum. See, e.g., Blakely, 542 U.S. at 309 ("In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence-and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury").

Similarly here, by committing the offenses of which he was convicted, Campbell risked the statutory max for those offenses. He got less, so no Sixth Amendment violation.

Viscerally, it understandably offends people to think that criminals can be sentenced on the basis of acquitted conduct. But it is difficult to distinguish that in principle from all of the other things that are on the table at sentencing. The jury doesn't make any findings about the offender's likelihood of recidivism, whether his family needs him, whether the facts of the case are particularly egregious, the offender's criminal history, remorse, etc. If all of those things are on the table, why not also include evidence showing that it's more likely than not that the offender committed other crimes in addition to the one of which he was convicted? All that the jury's finding means is that those other crimes weren't proved beyond a reasonable doubt. It shows no disrespect to the jury to say that there may be enough evidence to support such a finding by a preponderance. Again, those acquitted crimes don't raise the ceiling on the defendant's punishment.

Prof. Berman's response would probably be to point to the offender/offense distinction he's argued for. I think it's a plausible argument as a way of understanding the Sixth Amendment, but not a plausible way of understanding Blakely and the Apprendi line of cases. As I read those cases, they state rather clearly that the relevant distinction is between elements of the offense (as defined by the statutes setting forth the maximum punishment the defendant faces) and everything else. The offender/offense distinction is potentially a good idea for what the Supreme Court should do with the Sixth Amendment, but not an accurate description of what it has done.

Posted by: former clerk/the anonymous poster at 8:51 | Jul 14, 2007 10:37:38 AM

Of course, acquitted conduct is irrelevant for the purpose of holding offenders accountable. But it may be highly relevant for the purpose of establishing a person’s risk of recidivism. Course-grain sentences simply do not differentiate between the provocations that are embodied within the underlying problem, which is a threatening situation. First the subject’s conduct was a crime. Second, the subject’s crime was an offense. Finally, the subject is a criminal offender. These are three different ways of conceptualizing the same problem. Each naturally triggers one or more responses. Enforce the State’s warning. Hold the offender accountable. Control the offender’s risk of committing another crime. Finally, reduce that risk when possible. There is no Sixth Amendment problem so long as the sentence is within its authorized range.

Justice Beyer noted in Rita that the guidelines are simply a course-grain device, which was designed to approximate sentences, based on past experience with run of the mill cases. The guidelines are not a crutch, although they are often used that way. Rita made it clear that the guidelines are useful only for the purpose of telling whether a sentence hit the target, not the bulls-eye. Sentencing decision-makers still have to do the hard work, provocation-by-provocation, response-by-response.

Doug, I am sending you by e-mail a framework for working through the sentencing process----a fine-grain approach to sentencing.

Posted by: Tom McGee | Jul 14, 2007 2:11:55 PM

Tom McGee writes: Rita made it clear that the guidelines are useful only for the purpose of telling whether a sentence hit the target, not the bulls-eye. Sentencing decision-makers still have to do the hard work, provocation-by-provocation, response-by-response.

This is certainly correct, but in many respects appellate review (under the abuse of discretion standard explained in Rita) is also a coarse-grained way of reviewing the sentence. To people sentenced to prison time, every day behind bars counts, and they understandably want more fine-grained review of their sentences, but I don't see such a right in the Constitution or the statutes thus far.

Posted by: | Jul 14, 2007 10:20:34 PM

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