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September 10, 2007

Strong commentary on acquitted conduct sentencing

Harlan J. Protass, who runs the terrific Second Circuit Sentencing Blog, has this new commentary in the National Law Journal, entitled "Not guilty? Go to jail."  The commentary attacks acquitted conduct sentencing enhancements and focuses on the Seventh Circuit troublesome decision last month in US v. Hurn (discussed here).  Here are snippets from the commentary:

In his novel The Trial, Franz Kafka describes a totalitarian state with a repressive judicial system.  One technique of this repression is provisional acquittals — the practice of clearing the accused and lifting the charges from their "shoulders for the time being," only to lay the charges on them again "as soon as an order comes from on high."  This is the way Mark Hurn must feel....

Hurn was charged and tried by a jury on charges of possession with intent to distribute both cocaine and crack.  He was found guilty on the cocaine charge, and not guilty on the crack charge.  He was sentenced to 17.5 years in prison.  If Hurn's sentence had been based solely on his cocaine conviction, he would have received jail time of about 2.5 years. It wasn't.  Instead, Hurn's lengthy sentence — almost seven times what he faced for his cocaine conviction — was based on the crack offense of which he was found not guilty....

Acquitted conduct sentencing ... goes against virtually everything we know and respect about the American criminal justice system.  We understand that the government cannot lock people up unless and until guilt has been proven to a jury beyond a reasonable doubt.  We also understand that the American criminal justice system would rather free a guilty person than imprison an innocent one.  Sentences based on acquitted conduct erode these principles and, with them, our respect for the law....

We've been taught from a young age that juries are the bedrock of the judicial system, and that we should take pride in the system's inherent fairness.  But acquitted conduct sentencing effectively nullifies jury verdicts and allows judges to usurp the jury's fact-finding role — no need for juries at all if a sentence can be based on conduct of which a defendant was found not guilty. This upsets the delicate balance that the founding fathers struck when framing the U.S. Constitution. As Alexander Hamilton put it, "arbitrary punishments upon arbitrary convictions" are the "great engines of judicial despotism."...

Mark Hurn is no boy scout.  He's a drug dealer. But the government failed to prove beyond a reasonable doubt that he was dealing crack.  Nevertheless, Hurn is serving time as if the government had — 17.5 years, to be precise.  That's a long time.  He'll likely spend much of his time wondering how he got there.  The American public and lawmakers should spend some of that time asking the same question.

A few related posts on acquitted conduct sentencing enhancements:

September 10, 2007 at 12:54 PM | Permalink


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Could this be related? Are there any studies on the punitive police state and violent reactions? Is the war on crime evolving into an actual war like the war on terror? Are more police killed in the more punitive states?

Officials push a return to police partners With three BSO deputies murdered in the past year, some want local law enforcement to pair officers who patrol the streets -- no matter the cost.

As Cop Killings Rise, Should All Patrol Officers Have Partners?
With cop killings surging across the nation, some top
state and local officials in Florida say it's time to
resurrect the practice of requiring patrol officers to
have partners, reports the Miami Herald. After the
shootings of two Broward Sheriff's Office deputies in a
five-day span last month, David Murrell of the state
Police Benevolent Association said, ''Everyone
hopping about by themselves is a recipe for disaster.
If there were two officers to a car, maybe what
happened to those two deputies wouldn't have

The cost to pair patrol officers would be too expensive
and there aren't enough officers to carry it out, local
police officials say. That bucks a trend in most large
metropolitan areas, which generally deploy two-man
teams. New York, Washington, D.C., Chicago, and
Los Angeles all partner officers. The issue comes
down to staffing and money, Miami Police Chief John
Timoney said. Northern states try to have four to five
officers for every 1,000 residents, while Miami-Dade
and Broward employ only half that number. ''They have
the money to do it up north. Down here, you get what
you pay for,'' said Timoney. The number of law
enforcement officers killed in the U.S. this year
through June 30 eclipsed 100 for the first time in
almost three decades, says the National Law
Enforcement Officers Memorial Fund. That's a 44
percent increase over the same period last year. In
1995, florida law enforcement officials lobbied for a
state law that would require cities to give patrol
officers partners. Cities and counties lobbied
successfully to water down the law, the Jeffrey Tackett
Law Enforcement Safety Act.

HT: http://cjj.mn-8.net

Posted by: George | Sep 10, 2007 3:08:16 PM

No. It isn't related. (And yes, I think that police departments should have better funding.)

Posted by: S.cotus | Sep 11, 2007 6:52:19 AM

Hypocrisy, thy name is lawyer.

So if I say sentencing based on acquitted conduct is wrong, I'm just some idiot non-lawyer who is obviously incapable of understanding the esoteric details of your profession and should keep my uninformed mouth shut. But if one of your number with a moniker I thank God my parents didn't give me (though it does look distinctive in the name of a law firm) says the same thing, then you may deign to take it seriously. Of course, Kafka wa a lawyer, so he's allowed to have an opinion.

But even if lawyers are the only ones who can credibly say that this nonsense undermines RESPECT FOR THE LAW (and that that matters), keep in mind that I and my non-legal fellows are the ones who either have or do not have that respect. And, as George points out, it is possible that this alleged lack of respect could have serious consequences. (Actually, there are plenty of examples of punitive police states engendering violent reactions. I'm thinking 1776, 1789...) While I do not believe in capital punishment performed either by the government or by members of the public at large, I must admit I have observed over the years some very interesting and disturbing police behavior when they believe they are dealing with someone who has committed a crime, even though, according to a polite legal fiction, that person is "innocent until proven guilty." Said behavior tends to differ from their approach to people they believe have not committed crimes and also, on occasion, from what is commonly deemed "legal" and "moral." This state of affairs does not endear them to me. But I digress.

My view of this matter is that of an ordinary citizen who could at some point be charged with a crime. I have no intention of committing one, but as we learn every day, that is not necessarily any protection against being accused of one (especially since I do not have to "intend" but only to do or be thought to have done something which a prosecutor can construe as a crime.) And should I be accused, I have no way to pay one of the more competent members of your fraternity, so I will be stuck with a public defender (let me hasten to say that I have actually encountered one very competent public defender--but only one!) who will undoubtedly advise me to plead to a lesser charge, whereupon a judge is free to sentence me as if I have committed the offense(s) to which I did not plead and of which I was not convicted. And should I have the audacity to insist on my supposed "right" to a jury trial, I will no doubt be advised that the prosecutor can probably convince a jury that I am guilty regardless of my actual guilt or innocence, and, should that occur, the prosecutor will make sure I get the maximum possible sentence. Kindly explain to me how someone looking at our legal system from this perspective can have any "respect" for it?

I am reminded of two friends from my college days. One was a TA in the German department who had been a child in Germany during WWII. Another was a professor who was a South African Jew. Both of them expressed the opinion that the US was really no different from their respective countries--the American system just put a sugar coating on its behavior. My German friend likened it to pastry in the US being covered with gooey icing, as opposed to German pastry which was not. I remember being shocked by their assessment at the time, but, unfortunately, in the ensuing years I have come to share it. It is a sad day for our country when its citizens feel a need to be protected FROM the law!

The solution, dear lawyers, is conceptually simple. Get your noses out of the law books, stand back, and have the guts to look at the absurdity you and your colleagues have created. Then you might begin to repair the damage by actually putting into practice some of those pesky idealistic notions in which you expect the rest of us to believe.

Posted by: disillusioned layman | Sep 11, 2007 1:06:46 PM

You may be right, S.cotus. What is the reason for the spike then? Obviously, Three Strikes and "tough on crime" aren't the panacea some claimed they would be. I suggest, without any evidence, that police officers might be the first to face any backlash. But then I believe Bush is actually creating more terrorists and perhaps knew he would all along. The neocons think the people are idiots, like you do, and think they can be led by the nose in the war of good against evil - to the point of surrendering constitutional rights - if the evil is perceived as evil enough. For some, that is the foundation of the victims' rights movement in the same way the war on terror is an avenue to sacrifice personal liberties. The war on terror and the war on crime are mirror images of each other. Maybe, just maybe, our troops face the consequences in Iraq and our police officers are the first to face them here. It would take a detailed study to learn if this is even possible. In states when the violence against police officers spiked:

1. Is habeas corpus denied on a technicality too often?
2. Is there a one strike or three strike law?
3. Is there is higher rate of executions?
4. Are defendants more likely to be sentenced on acquitted conduct?

All this would be difficult to determine as cause and effect because federal laws permeate the criminal justice system now and a state by state analysis would likely be misleading.

I'm not saying there is this cause and effect and the spike could be because there are more young males now or it could be something else or merely an anomaly. That you say it isn't related without support is meaningless even if you are right.

Posted by: George | Sep 11, 2007 2:55:06 PM

Disillusioned layman, where do I start? First, by way of disclaimer, let me note that I am one of those "incompetent" [federal] public defenders to which you refer. Second, let me say that the federal public defender community (and criminal defense bar generally, e.g., NACDL and the ABA)has had its nose out of the books and been screaming about the unjust and unconstitutional practices of the federal sentencing guidelines since before 1987 when the Guidelines took effect and ever since. While I agree with your description of them as absurd, the defense community did not create them, Congress did, with the help of the judiciary. [Begs the question of why Justice Breyer doesn't have a conflict of interest in ruling on the constitutionality of the system he helped create.] If you want to level some blame, instead of trying to fix the damned thing, then look around you to you and your friends who voted into office the legislators who created the Guidelines and who keep getting re-elected by screaming about how criminals have too many rights and how punishments need to be increased. You want to do something about it? Vote the bastards out of office and vote in someone who has a more progressive perspective on criminal justice issues. In the meantime, quit leveling blame until you've done your homework.

Posted by: Sumter L. Camp | Oct 12, 2007 1:51:58 PM

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