Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing

A helpful reader made sure I did not miss the rich opinions coming today from the Michigan Supreme Court in People v. Beck, No. 152934 (Michigan July 29, 2019) (available here).  Here is part of the start of the majority opinion authored by Chief Justice McCormack:

In this case, we consider whether a sentencing judge can sentence a defendant for a crime of which the defendant was acquitted.

That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that acquittal, take the same alleged crime into consideration when sentencing the defendant for another crime of which the defendant was convicted?  Such a possibility presents itself when a defendant is charged with multiple crimes.  The jury speaks, convicting on some charges and acquitting on others.  At sentencing for the former, a judge might seek to increase the defendant’s sentence (under the facts of this case, severely increase, though we consider the question in principle) because the judge believes that the defendant really committed one or more of the crimes on which the jury acquitted.

Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because the state failed to prove guilt on those charges beyond a reasonable doubt.  But the jury might have thought it was somewhat likely the defendant committed them.  Or the judge, presiding over the trial, might reach that conclusion.  And so during sentencing, when a judge may consider the defendant’s uncharged bad acts under a lower standard — a mere preponderance of the evidence — the judge might impose a sentence reflecting both the crimes on which the jury convicted, and also those on which the jury acquitted but which the judge finds the defendant more likely than not did anyway.  Is that permissible?

We hold that the answer is no. Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.

Justice Viviano authored a lengthy solo concurrence that starts this way:

In every criminal trial, jurors are instructed, “What you decide about any fact in this case is final.”  But if a judge may increase a defendant’s sentence beyond what the jury verdict alone authorizes — here, based on the judge’s finding that the defendant committed a crime of which the jury just acquitted him — a more accurate instruction would read: “What you decide about any fact in this case is interesting, but the court is always free to disregard it.” Though I concur fully in the majority opinion, including its holding that due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I write separately to explain (1) why I believe that, because defendant’s sentence would not survive reasonableness review without the judge-found fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe more generally that the consideration of acquitted conduct at sentencing raises serious concerns under the Sixth Amendment.

And Justice Clement authored an extended dissent for herself and two other that concludes this way:

The majority’s holding may be difficult to apply, and it directly contradicts existing precedent.  The presumption of innocence does not prohibit the trial court from considering conduct underlying acquitted charges when sentencing a defendant for convicted offenses as long as the conduct is relevant and supported by a preponderance of the evidence. The contrary conclusion is belied by the majority’s failure to cite any supporting precedent for its conclusion.  Accordingly, I dissent from this Court’s reversal of the judgment of the Court of Appeals.  I would have affirmed the holding of the Court of Appeals that the trial court did not err by considering conduct underlying defendant’s acquitted charge but reversed insofar as the Court of Appeals remanded this case for a Crosby hearing.  Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453, 460-461; 902 NW2d 327 (2017), I would have instead remanded this case to the Court of Appeals so that it could determine whether the trial court abused its discretion by violating the principle of proportionality.

Based on my too-quick scan of these opinions, it seems that the majority's holding is grounded on federal constitutional law (rather than just on state constitutional law). This means the state of Michigan could reasonably opt to seek further review in the US Supreme Court. Give Justice Gorsuch's work to date on similar issues and Justice Kavanaugh's past statements about acquitted conduct, I really hope Michigan might try to garner the Justices' attention on this conceptual and practically important topic.