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October 20, 2014

"Why Did the Supreme Court Sidestep Sentencing Dispute?"

The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro.  Here are excerpts:

The U.S. Supreme Court's ­refusal to add a Washington drug case to its docket would not ordinarily get much notice.  But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.  In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.

"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."

Cato Institute senior fellow Ilya Shapiro said, "It's not just high-­profile culture-war issues like same-sex ­marriage and the right to bear arms that the Supreme Court is avoiding like the plague."  Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked.  "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along.  As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable ­practice" of basing sentences on uncharged or unproven offenses.

An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review.  "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."

In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....

Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....

The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."

Previous related posts on the Jones case:

October 20, 2014 at 09:25 AM | Permalink


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Today's grants seem all to have criminal justice implications.


Posted by: Joe | Oct 20, 2014 10:35:22 AM

Prof. B.,

Sorry but while I can see it looking odd on the surface once someone realizes that conviction and sentencing carry different burdens of proof this becomes a manufactured controversy. And this despite the fact that I believe that a hung jury should be an outright acquittal on the involved charges. Perhaps we need to add a third choice for jurors, and not just the Scottish option but an outright 'innocent'. And if a jury came back with that verdict then all other action based on those facts (including civil) would be barred. But as things stand I simply see no issues with saying that someone is not guilty of a particular crime beyond reasonable doubt but saying that the conduct is relevant at a preponderance level when punishing for some other crime for which there was proof beyond reasonable doubt.

Posted by: Soronel Haetir | Oct 20, 2014 11:48:25 AM

Soronel Haetir,

Then all the prosecution need strive for is a "maybe" in addition to a real conviction, as long as it can get a conviction for something with enough arbitrary and capricious leeway in it to provide more punishment for that maybe. Stack the charges, get a conviction on one and a sentence on all.

What about "innocent until proven guilty beyond a reasonable doubt"? And what about the distinction between probable cause and proof beyond a reasonable doubt?

Under your system we could do away with the judicial branch and have the police decide if there is probable cause or not for a long sentence.

Posted by: George | Oct 20, 2014 12:42:49 PM

"carry different burdens of proof"

this is tempered by the Blakely/Booker line of cases

... anyway, I find it hard to have "no" issue with having a system where criminal charges have to meet beyond a reasonable doubt & until then the person is INNOCENT of those alleged acts but EVEN IF (I use the caps advisedly) they are found innocent, they will be in effect STILL guilty since it can increase their sentencing for some other crime. Stuff not tried by a jury such as how the person's work history or status in the community holds up can influence sentencing, surely, but "crimes" are found by juries or judges acting as triers of facts using beyond a reasonable doubt standards.

Along the margins, the lines are perhaps cloudy, but "no" issue goes a step too far even if we take the dissenters view in the two cases cited as having a strong argument.

Posted by: Joe | Oct 20, 2014 12:50:20 PM

I don't buy the argument that the facts were "too good." That just means the facts were clean. You can start with the clean case to announce the rule and allow the lower courts to hash out the messy cases where the facts aren't that good. I don't buy the argument that they avoided taking a case because it fit their needs too well.

Posted by: Erik M | Oct 20, 2014 2:54:37 PM

soronel your talking out your rear again. Sorry under our constitution non-charged and non-convicted conduct is a non-starter on anyone. for ANYTHING. What the hell you think that BEYOND A REASONABLE DOUBTY standard is for?

absent a CONVICTION that standard is triggered automatically after all IF the state had MET that burden they would get gotten a GUILTY VERDICT.

Sorry in my book all this decision from the fucktards on the high court does is prove the fact they are GUILTY of being accessories BEFORE and AFTER the fact in this treason.

Posted by: rodsmith | Oct 20, 2014 4:45:44 PM

Judge might need to make sure his mouth doesn't leave him hanging somewhere his ass can't back it up!

"District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court...."

gonna look awful sick if some a real American see's this statement and decide it show's CLEAR EVIDENCE he's a two-faced traitor to his oath of office and decide to erase him. Which is a legal punishment given to traitor's in wartime.

Posted by: rodsmith | Oct 20, 2014 4:49:13 PM

I think acquitted conduct and uncharged relevant conduct, need to trash canned.

Im not interested what rules or rubbish is in the guidelines that allow a judge to increase a sentence.

This is exactly the kibd of crap that has filled federal prisons and needs to go away.

Sentence them, yes. But the days of warehouseing people has to stop.

Posted by: 187Midwest Guy | Oct 20, 2014 10:58:55 PM

Well, it may not be very comforting to Mr. Jones and the other three petitioners here if/when the law eventually changes in their favor. I don't think that would qualify as a retroactive ruling that they could take advantage of.

I admit I am not as conversant with 2255 as 2254, though, so maybe there is some option for relief in federal cases where a subsequent SCOTUS decision makes the application of the guidelines clearly inappropriate?

Posted by: Anon | Oct 22, 2014 2:39:24 PM

or they could use the final check on the gov't when it's talking out it's ass. Self removal. just starting killing every gov't agent they can get too till they work their way out of prison.

Posted by: rodsmith | Oct 23, 2014 2:11:11 AM

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