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May 19, 2016

Can anyone forcefully assert that a major sentence enhancement based on acquitted conduct (or even uncharged conduct) is "fundamentally fair"?

The question in the title of this post is prompted by a few notable sentences at the very end of the (otherwise not-especially-notable) majority opinion from the Supreme Court today in Betterman v. Montana, No. 14-1457 (S. Ct. May 19, 2016) (available here).  Specifically, after holding that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing, the  Court in Betterman has this to say about the possible role of the "more pliable standard" that relates to due process rights: "After conviction, a defendant’s due process right to liberty, while diminished, is still present.  He retains an interest in a sentencing proceeding that is fundamentally fair."

As regular readers know, in the wake of Apprendi and Blakely and Booker (and even in light of the advisory Booker remedy), I believe that the Sixth Amendment's jury trial right must create a constitutional limit of some sort on judicially-imposed major sentence enhancements that are based on so-called acquitted conduct.  (My views here have most recently be articulated in full via this (unsuccessful) SCOTUS amicus brief in support of cert from a few years ago).  But, as Betterman helps to highlight, even if and when a defendant cannot prevail on a Sixth Amendment claim at sentencing, he can always fall back on a Fifth/Fourteenth Amendment Due Process claim.  And, of particular linguistic importance, if Betterman suggests that a significant majority of current SCOTUS Justices are serious about a possible due process right (or "interest") "in a sentencing proceeding that is fundamentally fair," perhaps it will be possible to get them to take up on due process grounds a challenge to a major judge-imposed sentence enhancement based on acquitted conduct or even uncharged conduct.

I know this post may be just wishful thinking that the last phrase about due process quoted above might be given some real constitutional bite by SCOTUS or lower courts in days and months ahead.  But hey, what fun is life without at least a little wishful thinking.

May 19, 2016 at 04:46 PM | Permalink


Yes, I can. I basically believe that anything less than the statutory maximum for any offense is a gift to the offender. Gifts are not something people are entitled to.

Posted by: Soronel Haetir | May 19, 2016 6:09:50 PM


The point of creating a statutory sentencing range is to give judges discretion. Discretion by its nature is not a gift--it is an option. The exercise of an option is no more a gift in criminal justice than it is in the commodity markets.

Having said that, I agree with the fundamental point that so long as the judge sentences within the statutory guidelines the sentence is fundamentally fair. I don't believe that the motivations of the judge matter at all.

Posted by: Daniel | May 19, 2016 6:53:04 PM

I see you filed an amicus brief in the Hebert case, which seems as good a vehicle as any to set some limits. I do wonder if Soronel and Daniel can say with a straight face that a 92-year sentence for a $16,000 fraud is constitutional.

Posted by: Lady Fellow | May 19, 2016 8:10:47 PM

Doug, as you know, sentencing has gotten extraordinarily complicated, and I am litigating a number of cases where judges simply don't follow the procedure. I think Betterman will be helpful in compelling judges to follow the law,or run the risk of a sanction by way of a due process violation.

For example, during a guilty plea colloquy, the judge asks the def if he understands he has a right to prove mitigating factors. But, if he does prove the existence of a mitigating factor, by showing such things as payment of restitution or honorable discharge from the military, a judge doesn't have to find that the mitigator exists. What could be more cut and dried than whether a def was honorably discharged or not?

I am glad to hear the court using language which suggests that due process, in the form of a fundamentally unfair sentencing hearing, is constitutionally protected. I can start citing Betterman tomorrow in multiple cases.


Posted by: bruce cunningham | May 19, 2016 10:03:17 PM

The comment appears to be boilerplate given it received support of each justice but if it does any good, that would be nice. But, I took the basic point was that they wasn't really deciding the due process point -- see, though, SCOTUSBlog suggesting maybe a hint.

Posted by: Joe | May 19, 2016 10:18:52 PM

Good question, Lady Fellow.

Posted by: Doug B. | May 19, 2016 10:35:55 PM

Lady Fellow,

Yes, I believe that a 92 year sentence is well within constitutional limits. I believe the court was simply wrong when it grafted a requirement for any sort of fit between offense and sentence. That is I believe the 8th amendment, properly understood, limits only what kind of punishments can be imposed (forbidding outright torture such as drawing and quartering) but says nothing about what offenses can draw an otherwise permissible punishment. I would, in fact, only have problems with execution as an outcome if you were discussing offenses comparable to thefts in the low tens of dollars.

Posted by: Soronel Haetir | May 19, 2016 11:22:24 PM


Well, now I'm just curious why you "have problems with" execution for theft in the low tens of dollars. Do you think the 8th Amendment prohibits it, or is that just where it really starts to gnaw at you? (In the first case, you're backtracking on your understanding of the Amendment. In the second, I'm surprised that execution for a $100 theft doesn't gnaw at you.) Or another reason?

We're a little off topic here, since these are Fifth and Sixth Amendment cases, but still, I wonder.

Posted by: Lady Fellow | May 19, 2016 11:40:06 PM

"low tens of dollars"

Posted by: Joe | May 19, 2016 11:41:57 PM

@Lady Fellow and others:

My prior comment was only in reference to acquitted conduct. I don't think that acquitted conduct makes a sentence unconstitutional, but that doesn't mean a sentence which takes acquitted conduct into account cannot be unconstitutional on some other grounds.

Abstractly, a 92 year sentence for 16K fraud is unconstitutional under the 8A. I have heard the argument Soronel makes in reference to the 8A and while I think it is a logically coherent argument, I don't buy it. Cruelty by definition implies some type of proportionality assessment.

Posted by: Daniel | May 19, 2016 11:53:56 PM

Thanks, Daniel. To give some background on the case I mentioned: at Hebert's sentencing, the judge found that the defendant had committed murder and imposed the 92-year sentence on those grounds. He was not charged with the murder. I gather from scanning the brief (although Doug B. knows the case far better than I) that this was below any statutory maximum, but well above the top of the guidelines range (~57 months).

Posted by: Lady Fellow | May 20, 2016 12:10:10 AM

Lady Fellow,

I don't necessarily believe there is a constitutional problem with execution for thefts in the low tens of dollars, that is simply where I start having an ethical problem with it. As for thefts in the low hundreds it not only doesn't gnaw at me I believe that is where execution actually becomes justified; To me someone who has shown that they are that unwilling to respect the rights of others deserves no rights of their own. As for the range between those two points while I might not believe execution justified I would not invest my energies arguing against someone who did.

Posted by: Soronel Haetir | May 20, 2016 8:50:18 AM

Terminology matters here. Apprendi creates a distinction between sentence enhancements (things that change the range of punishment) and sentencing factors (things that influence a judge or jury in deciding between different sentences in a non-binding way).

I think that, under Apprendi, a defendant has a right to notice of sentence enhancements (even if technically uncharged) and a right to a jury finidng on those enhancements. I think there may also be Ashe v. Swenson issues if the prosecution elects to enhance upon acquitted conduct (at least if the acquittal occurred in that jurisdiction).

As to sentencing factors (especially in non-guideline jurisdictions), I think courts can give effect to character evidence which might in some cases include acquitted conduct. I have tried cases in which, after returning a not guilty verdict, the jurors told me that -- while they thought that the defendant's conduct reflected poorly on his character and judgment -- they did not think it technically met the elements of the charge. I do not think it is unfair for a judge or jury in sentencing to consider those non-criminal lapses of judgment in assessing the potential dangerousness of a defendant.

Posted by: tmm | May 20, 2016 10:41:50 AM

tmm,, with all due respect, Apprendi has nothing to do with sentence enhancements. If Apprendi means anything it means that we no longer have aggravated sentences, we only have aggravated crimes.

As Scalia said in Ring, "Today's judgment has nothing to do with jury sentencing."


Posted by: bruce cunningham | May 20, 2016 2:50:33 PM

Bruce, this may be a terminology issue based on different systems. In my state, the only sentencing enhancements that we have are the ones subject to Apprendi (other than prior findings of guilt). Everything else is just tossed into the mix for whatever weight the sentencer wants to give. Under the definitions that I used in my post -- enhancement = something to do with range of punishment -- Apprendi is all about enhancements. Apprendi has nothing to do with sentencing factors.

Posted by: tmm | May 20, 2016 5:47:37 PM

A criminal justice system cannot exist where those subject to its caprices believe it illegitimate. Notwithstanding any theoretical commentary regarding the "investment of energies" against a justice system which executes petty criminals, the end result of such a "justice" system would lead invariably to a dystopian justice system predicated on who had the guns. Who would have justice then?

Posted by: MarK M. | May 21, 2016 11:47:48 PM

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