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July 18, 2009

Continuing the acquitted conduct debate and urging SCOTUS engagement

This recent post noting Judge Bright separate opinion reiterating forcefully his view that acquitted conduct sentencing enhancements are unconstitutional has generated a dynamic debate in the comments about both the law and policy of a judicial decision to increase a defendant's sentence based on evidence of conduct that a jury determined was insufficient for a formal conviction.  Because there is so much to worthy of saying in this arena, I have done this post to foster continued dialogue.

One topic of particular concern for me (and it seems also for Judge Bright) is the Supreme Court's disinclination to fully engage this consequential federal sentencing issue.  Back in 1997 when the Supreme Court formally addressed this issue in Watts, it did so through an opaque per curiam summary reversal.  I have long thought the Justices' choice to deal with this important issue in summary fashion was highly suspect, and Justice Kennedy in Watts even called out his colleagues for failing to place the case on the regular argument calender.

Now, a dozen years later, we have had the rulings in Jones and Apprendi and Blakely and Booker and Cunningham raise new questions and concerns about the vitality and reach of Watts as a constitutional ruling.  In addition, even if acquitted conduct enhancements are still constitutionally permissible, there are challenging questions about the statutory soundness of such sentencing enhancements in light of the instructions of 3553(a) and the appellate review standard of reasonableness.  And yet, despite a number of distinct cases raising this issue since Booker, the Supreme Court has denied cert again and again.  Whatever one thinks of the merits of this issue, isn't it problematic and worrisome (and perhaps telling) that the Supreme Court seems eager to avoid dealing with this issue head on?

July 18, 2009 at 11:41 AM | Permalink


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Either you want to decrease crime or you want to fool around with unscientific garbage rhetoric to generate jobs for the CCE.

The reason the sentencing guidelines dropped crime by 40% is that they increased the time of incapacitation, and no other reason. There was no message sent. The guidelines are hard to follow and calculate even by experts. They are themselves pretexts to increase the time of incapacitation from the days where criminal lover judges loosed their vicious predators on the public.

The universe is probabilistic, there is no cause and effect. So all that Medieval, Gladstone stuff is garbage. If character reflects a higher probability of a behavior, then each conviction is an opportunity to incapacitate a character, and not a reaction to the specific crime. Each year of incapacitation prevent 50 or more major felonies per defendant, on average. That is the sole value to the owner of the law, the public, the prevention of future crime. The rest is atavistic garbage, used as a pretext for rent seeking.

Posted by: Supremacy Claus | Jul 18, 2009 12:00:22 PM

So who on the Court (regardless of whether Souter of Sotomayor is there) would be a fifth vote to bar the use of such enhancements? Given various statements made I beleive both Scalia and Thomas don't really care about how a sentence is fashioned so long as it is within the statutory range. Roberts, Kennedy and Alito have already come out against a strong confrontation right.

I suspect the reason no case has had cert granted is that as distasteful as AC enhancements may be there simply isn't a majority able to come up with a satisfactory way to get rid of it. As was discussed in the prior thread, as well as the double jeopardy at the intersection of aquital and hung counts, determining what the jury failed to convict on may not be an easy task.

Posted by: Soronel Haetir | Jul 18, 2009 12:11:23 PM

And I don't see Congress having the will to approach the sentencing problem as a whole again any time soon. They might nibble around the edges, changing guidelines here and there, but we aren't going to see anything as fundamental as the SRA. I don't even see Congress switching back to mandatory guidelines with jury proof, which wouldn't be a huge change compared to what the SRA imposed.

Posted by: Soronel Haetir | Jul 18, 2009 12:25:04 PM

Lawyers tend to have one-track minds. I believe this accounts for the hang-up on so-called acquitted conduct. Actually cognitive science tells us that people make much better decisions when we think about problems in more than one way, thereby accessing more information.

Here are the reasoning-tracks that are involved in deprivation decision-making: (1) People are penalized for committing crimes. Penalties are fixed before the fact and enforced after the fact. (2) People are punished for committing criminal offenses. Punishments are fixed after the fact within a range that was established before the fact, when the problem was not fully knowable. (3) A person’s risk of committing another crime/criminal offense is controlled when necessary. (4) A person’s risk of committing another crime/criminal offense is reduced when that is necessary and feasible. All of these things are done at the same time.

Of course, use of information about acquitted conduct for the purpose of making penalty and punishment decisions is inappropriate. But the use of such information in connection with risk control and risk reduction decisions is necessary, plus a lot more. Doing so is in the interest of both the state and offender.

Posted by: Tom McGee | Jul 18, 2009 2:34:59 PM

Maybe the Court is merely waiting for the right argument before addressing it.

Posted by: George | Jul 18, 2009 6:25:13 PM

Something else that occured to me, do people come to different conclusions about the use of aquitted conduct in these two situations:
Defendant is charged with four counts, one pair for a crime committed on June 1st and a second crime that occured on July 1st.

The defendant is aquitted on both June 1st counts and the more severe of the July 1st crime counts.

Is it more or less reasonable for the judge to reconsider the June 1st crime(s) or the July 1st conduct that the jury aquitted on? The case that got us started this time is much closer to the latter situation.

Posted by: Soronel Haetir | Jul 18, 2009 10:20:23 PM

That's the problem, Soronel. Under our system, who committed the first crime? And was the same person responsible for the second crime that occurred?

Under our system, there is a presumption of innocence that can only be overcome by a standard of beyond a reasonable doubt. Though some complain about that standard, few really want to change it.

By discussing acquitted conduct we mean proof that falls short of this standard, which is therefore not proof enough.

Your question should be moot until the prosecutor reaches that burden. While it is an interesting thought experiment, it tends to miss the point: the defendant is innocent until proven guilty in a court of law. They tell us that on "Cops" every night though the cops on "Cops" are so edited to perfection we know as a matter of course everyone they arrest is guilty. People still think the prosecutor should have to prove it if necessary.

Posted by: George | Jul 19, 2009 12:38:01 AM

Is the other side of the acquitted conduct coin ESTELLE v. McGUIRE, 502 U.S. 62 (1991)?

"McGuire first claims that the instruction directed the jury to find that he had caused the prior injuries, thereby effectively taking that question from the jury. One might argue that the "two offense[s]" referred to in the instruction were McGuire's pinching of the child's cheeks and the lifting of the child by her arm. When read in context, however, we conclude that the most likely interpretation is that the reference was to the rectal tearing and fractured ribs. McGuire argues that, despite the lack of any direct evidence linking him to those injuries, the instruction directed the jury to find that he had committed them. This claim is clearly foreclosed, however, by the language of the instruction. The challenged portion of the instruction included the words "if the Defendant committed other offenses." App. 41. By including this phrase, the trial court unquestionably left it to the jury to determine whether McGuire committed the prior acts; only if the jury believed he was the perpetrator could it use the evidence in deciding whether McGuire was guilty of the crime charged."

Some ugly facts in that case and the opinion does not suggest any change in acquitted conduct rules any time soon. Congrats to Mr. Scheidegger et al. for the victory.

Posted by: George | Jul 19, 2009 1:41:33 AM

Posted by: George | Jul 19, 2009 12:38:01 AM

That still doesn't help solve the question of what sentence within the lawful range is correct for a given offender.

I'm coming to the belief that any conduct relevant to acts for which there is a conviction should be fair game during sentencing but that conduct connected to aquitted seperate acts should be disallowed from consideration. So the more severe July count should at least come into consideration under the above example.

Certainly so long as judges have great discretionary power to fashion offender specific sentences they should be allowed to consider aggrevating as well as mitigating circumstances about both the offense and offender.

Posted by: Soronel Haetir | Jul 19, 2009 2:05:02 AM

Soronel, but that is where stacking charges comes in. Bill Otis says he stacked charges just for this reason, as insurance of conviction and to help assure the conviction is affirmed on appeal. That suggests ADAs do not think there is enough evidence for conviction on all charges, and yet the judge can sentence based on those acquittals. In effect, ADAs stack the sentences if the judge can consider acquitted conduct.

It is like the barter system of start high and go low. The high is not a real representation of the value of what is bartered and it appears juries recognize this if and when there is a compromise verdict. But the false representation helps ensure a conviction of something and yet the judge can consider that false value at sentencing.

This is why I think juries instinctively oppose sentences based on their acquitted conduct.

Posted by: George | Jul 19, 2009 11:37:43 AM


Given the reality that the vast majority of cases plead out I am much more interested in the effect of charge stacking in that context. I've yet to find a convincing methodology for examining how close eventual pleas conform to the real underlying behavior.

My sense is that in drug cases defendants get substantial breaks for pleading over the actual underlying behavior. Assault cases I'm honestly not so sure. The prosecution is going to charge aggrevated assault but then the defendant pleads to simple assault. Judging that situation against reality is far harder.

I don't have a great deal of sympathy for guilty people who take their chances at trial, yet I also have no way to measure the actual false positive failure rates of trials.

Honestly, I think it's probably a good thing that nearly every charge ends with a conviction of some sort. It would be an indication of wasted resources if most charges ended in total aquittal. But that too doesn't help measure the false positive rate, which concerns me much more than the sentence someone who is actually guilty recieves.

Posted by: Soronel Haetir | Jul 19, 2009 12:04:08 PM


In a similar vein I find the amount of resources we spend finding offenders who are technically innocent of the death penalty to be very troubling. It just doesn't make that much sense to me to worry about the degree of malice or whether someone is smart enough to understand what they did or all the other myriad factors that can negate a death sentence.

I would much rather those resources went to finding those defendants convicted on less serious charges who are actually innocent.

Posted by: Soronel Haetir | Jul 19, 2009 12:08:35 PM

Does anyone know how much benefit the government actually derives from considering acquitted conduct?

My impression is that about 90 percent of criminal cases end in a plea bargain, so in those instances there clearly is no acquitted conduct enhancement, because there is no jury verdict. Among the remaining 10 percent, I suspect only a fraction have acquitted counts.

So if the acquitted conduct enhancement were dropped, the government would still get the identical sentence around 95 percent of the time, maybe more. I suspect, therefore, that there is minimal benefit to the state from being able to consider acquitted conduct in the GL range. Yet, the "optics" of it feel wrong; to the layman, it is counter-intuitive that one can be acquitted of an act, and yet it may count in determining the punishment.

Unlike Doug, I am not suggesting that the Supreme Court should take up the issue. If they did, I am positive it would be upheld. But strictly from a policy perspective, I do not think it buys the government very much.

Posted by: Marc Shepherd | Jul 19, 2009 7:26:30 PM

With regard to SCOTUS vote counting, I have my doubts that Scalia and Thomas would side with the government on this one. Like everyone else, I'm merely speculating. But it's worth noting that Scalia and Thomas (along with Souter) have been the most consistent proponents of an expansive reading of the right to trial by jury. They concurred in Rita to explain how a sentence based on judge-found facts can give rise to an as-applied Sixth Amendment challenge, and Scalia has since dissented from a denial of certiorari on this same point (in Marlowe v. U.S., as I recall). Thomas (and Scalia, too, I believe) have also advocated overruling the former-conviction exception. It's possible that they'd prefer to deal with these challenges by categorizing acquitted conduct as just one subset of judge-found facts, which can often give rise to an as-applied violation, rather than by saying that acquitted conduct can never be used. But in some ways that decision would actually be more sweeping and more pro-defendant than a bar on acquitted conduct alone.

It's also worth noting that Roberts joined Scalia's dissent in Oregon v. Ice, so it's not absolutely clear what his thinking on the jury-trial right is. If he ends up siding with Scalia and Thomas, we could see a 6-3 decision in favor of the defendant (with only Kennedy, Breyer, and Alito in dissent). Again, I'm not wagering that this will be the outcome. But I wanted to note that, if the use of acquitted conduct and other judge-found facts in an advisory sentencing regime gets taken up, it's not at all clear what the outcome will be.

Posted by: Anon321 | Jul 20, 2009 10:45:21 AM

Whatever one thinks of the merits of this issue, isn't it problematic and worrisome (and perhaps telling) that the Supreme Court seems eager to avoid dealing with this issue head on?

No. Watts is still the law, a jury acquittal is still not the same thing as an affirmative finding of innocence, and "acquitted conduct" isn't being used to sentence defendants above the maximum punishment permitted under the facts as found by the jury.

The fact that Judges Merritt and Bright don't like the law and the fact that several lay journalists don't understand it doesn't mean that there's any genuine confusion about it that warrants the Court's attention.

Posted by: anonymous | Jul 20, 2009 11:30:34 AM

In today's federal courts, everything is so stacked against the defendant that contrary to what anonymous and others say, an acquittal is representative of a finding of innocence,for if there were any way the average jury could find guilt, regardless of the evidence, it is likely they would. Secondly, it is not true that a sentence based on acquitted conduct cannot go above the statutory maximum of the convicted offense. Case in point:

Ivan Eberhart was charged with 2 counts (1) distribution of 2 kilos of cocaine to an informant on 12/15/98; (2) conspiracy to distribute cocaine (the only act alleged in furtherance of the conspiracy was that he delivered 2 kilos of cocaine to the informant on 12/15/98)
He was acquitted of the delivery because his mother's home had been burglarized on 12/15/98 and two police officers, an evidence technician, a repairman, a neighbor and his mother testified to his whereabouts at 9 pm on 12/15/98 - when according to the informant he was supposed to be 13 miles away delivering drugs. ( by the way changed his story so many times he was not allowed to come to trial and testify & his hearsay testimony was brought in by officers).
He was convicted of the conspiracy, which strangely was never brought up by the government until closing statements, and never defended by the defense - and no evidence or witnesses or co-conspirators were brought to trial to prove a conspiracy. The jury was given a "special verdict" and told to check of 5 kilos or more, which calls for a 10 year to life sentence. There were no quantities attached to the conspiracy charge. At sentencing Judge Zagel said he did not see any drugs, therefore, he'd have to look elsewhere to find the 5 kilos. The first place, he said, he would look would be at the 2 kilos (acquitted conduct); "but 2 kilos do not make 5" he said, "however, I think that the jury had ample evidence to prove 5 kilos" And so he was sentenced to 10 years. Had he been sentenced only to the acquitted conduct of 2 kilos, he would have been looking at a maximum of 5 years. Had he been sentenced on the conspiracy charge alone, which contained no quantities, he would have been sentenced to less than 2 years. And for those of you who think this injustice prevented him from future crimes - he was an active member in his church, had a steady job, paid income taxes, was an actively involved father of 5 children and a husband, drove a 10 year old Toyota, had no excessive cash, was never found to posess any drugs or weapons - in fact the only incriminating factor was that he is African American.

Posted by: Lay Journalist | Jul 20, 2009 12:01:50 PM

I meant to say it was the informant who changed his story so many times that the AUSA didn't know what he'd say, and therefore he was not allowed to come to trial to testify against Ivan Eberhart. And by the say, the informant later recanted and in his own 2255 5 years later, he stated that "I was scared, and the government wanted me to give a name, and the first name that came to my mind was Ivan Eberhart." He also said, the government tried to convince him that if he would say that Ivan delivered 5 kilos, instead of 2, that he (the informant) would only get 2 1/2 years (he ended up with 10). It is clear that as a gang member, he could not name the person who really supplied the kilos.

Posted by: Lay Journalist | Jul 20, 2009 12:08:12 PM

No. Watts is still the law, a jury acquittal is still not the same thing as an affirmative finding of innocence, and "acquitted conduct" isn't being used to sentence defendants above the maximum punishment permitted under the facts as found by the jury.

Well, that just assumes away the main question about using judge-found facts in post-Booker sentencing -- whether the "maximum punishment permitted under the facts as found by the jury" is the statutory maximum or the maximum sentence that would be substantively reasonable under those facts.

To be lawful, a sentence must be substantively reasonable. Under Apprendi and Blakely, a sentence must be lawful under the facts (other than a prior conviction) found by a jury or admitted by the defendant. Imagine that a sentence would be substantively unreasonable without fact X but substantively reasonable with fact X. If the jury did not find (and the defendant did not admit) fact X, why would it not be a violation of Apprendi and Blakely for the judge to find fact X and thereby turn what would have been a substantively unreasonable sentence into a reasonable one? Scalia posed this question in Rita, and the majority said, in essence, "well, that's just a hypothetical that we don't need to address here." And I've yet to hear an adequate answer to his question. I can think of a couple of formalist justifications, but none has struck me as adequate. If anyone has any ideas, I'd be curious to hear them.

Posted by: Anon321 | Jul 20, 2009 12:38:37 PM

Posted by: Lay Journalist | Jul 20, 2009 12:01:50 PM

Given the time frame of the case you bring up it is entirely outside the present question. I also fail to see how the informant testimony would be allowed after Crawford if it were objected to.

Posted by: Soronel Haetir | Jul 20, 2009 4:11:48 PM

Given the time frame of the case you bring up it is entirely outside the present question. I also fail to see how the informant testimony would be allowed after Crawford if it were objected to.

Posted by: Soronel Haetir | Jul 20, 2009 4:11:48 PM

You are correct. It should not even have been allowed under Bruton, however, it was and based on the appellate attorney's objection, the judge granted a new trial. The government appealed that ruling and by the time the appellate brief was written, Crawford had been decided. The appellate panel stated that it was not an error under Crawford because the testimony "was not presented for the truth." Of course it was, but because there was a footnote in the Crawford ruling that if a testimony is not presented for the truth, it is an exception, the government used this argument, silly as it was, and the appellate court accepted it, among many other dubious rulings. And no, it was not out of time because acquitted conduct was questionable then and it is questionable now.

Posted by: Lay Journalist | Jul 20, 2009 5:20:56 PM

My time reference was to the fact that the entire sentencing regime has undergone a huge shift since the late 90s. It does bother me what courts have come to accept in terms of hearsay testimony but that would appear to be an entirely different issue.

Posted by: Soronel Haetir | Jul 20, 2009 6:25:23 PM

Anon321. The problem I have with Scalia's reasoning is that it is too formalistic for my taste. I don't see the issue he raises as a substantial problem but a procedural one. So long as a judge sentences within the guidelines range, who cares what reasons he gives. In my mind it's all pre-textual anyway. What's the difference between the judge enhancing the sentence because he thinks the perp is ugly or dresses oddly and acquitted conducted. Judges will enhance sentences because they feel like it and then use whatever excuse people will swallow. You take away acquitted conduct and they will find some other excuse.

I think that rather than quibbling over such formalistic elements it's better to ask questions such as why are sop many ex-prosecutors judges and what influence that has on sentencing or why Congress has created such large guideline ranges. Personally, I think these questions are more instructive as to what actually happens to defendants when they are sentenced than anything regarding aquuited conduct.

Posted by: Daniel | Jul 21, 2009 12:47:48 PM

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