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July 29, 2019

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.

July 29, 2019 at 04:13 PM | Permalink


My underlying problem can be expressed this way. As a philosophical matter I am opposed to thought crimes (for a wide variety of reasons) and banning the use of acquitted conducted comes awfully close to making it a thought crime on the part of the judge. First we decide, then we explain--Holmes. I fail to see what forcing judges to put down spurious reasons for their decisions accomplishes.

Posted by: Daniel | Jul 29, 2019 4:34:33 PM

Daniel: "Thought crimes" seem dangerous and worrisome because the state is going to punish you for what you are thinking and may also then spend a lot of time worrying about what you are thinking rather than what you are doing. When it comes to sentencing, I think we should spend a lot of time worrying about what judges are thinking when they decide to sentence a person. You are right to worry that a judge eager to punish someone for acquitted conduct could concoct other reasons for the record --- but that is also a problem if a judge is eager to punish someone for his race or her religion. That reality does not lead us to conclude that we should not say it is unconstitutional to use those reasons at sentencing.

Posted by: Doug B. | Jul 29, 2019 4:39:34 PM

This is not surprising from the Michigan Supreme Court. As a Michigan lawyer, they have become uber liberal for defendants. But, this opinion brings to light another issue: How do you use acquitted conduct as 404(b) evidence? Certainly, if a person has committed X amount of rapes/murders/whatever and has been acquitted, and then is tried for a another rape/murder/whatever of similar characteristics, are those prior acquitted acts now barred? I hope not. And if someone says, "Well, just tell the jury the person was acquitted previously," then my answer is, "Well, then if they were previously convicted the jury should know that." Each answer is wrong. A fact is a fact, and the jury should consider it. Just as a judge should consider the facts at sentencing.

The preponderance v.s. beyond a reasonable doubt certainly matters. And I think the MSC got this wrong. I hope the prosecutor appeals to the USSC because we need answers to these questions.

Posted by: Mike W. | Jul 29, 2019 5:35:25 PM


"I think we should spend a lot of time worrying about what judges are thinking when they decide to sentence a person."

I don't. As a psychologist I tend to think that a person learns to be decent, or kind, or have a sense of proportionality in elementary school and after that while it is possible it is difficult for a tiger to change its stripes. So I think that rather than worrying about issues like acquitted conduct and what is going on in a judges' mind we should focus more energy on changing the underlying parameters, like reducing the statutory length of sentences or by limiting the years of mandatory minimums. Put another way, if I had a choice I would rather (a) put the judge in handcuffs and let him think whatever he wants than to (b) let his hands grasp whatever weapon is in sight and then try to use propaganda to persuade him not to hurt anyone.

"That reality does not lead us to conclude that we should not say it is unconstitutional to use those reasons at sentencing."

That is true. At the same time we should also acknowledge that labeling certain kinds of thinking by judges as "unconstitutional" is more about virtue signaling within the legal profession than it is about getting people out of cages.

Posted by: Daniel | Jul 29, 2019 10:54:14 PM

I think I get your perspective, Daniel, and I agree that our substantive sentencing rules matter most here. But a potent substantive rule could be that any/all facts can be used by judges in mitigation (at any proof standard w/out any review) while only a very few facts can be used by judge in aggravation (which must be proved BRD with lots of review). As a psychologist, I suspect you would agree with me that such procedural rules would lead judges to migrate toward lower sentences.

Of course, before Booker, the federal sentencing guidelines operated in nearly the opposite way: the guidelines specified all sorts of facts for increasing the guideline range with a low proof standard and functionally little review, whereas very few facts could mitigate the range. Booker created a bit more balance, but the ways in which judges get regulated still can matter a lot.

Posted by: Doug B. | Jul 30, 2019 9:27:03 AM

I guess this causes a legitimate split now. That being said, there's always tricky lines. What if it's not acquitted conduct, what if it's uncharged conduct? Is that different? Obviously, there will always be things people are alleged to have done but won't be charged with (including aggravating conduct that isn't criminal). But, from a legal perspective both that and acquitted conduct are things someone is alleged to have done that the state failed to prove in a court of law.

Posted by: Erik M | Jul 31, 2019 10:19:01 AM

The underlying issue is really what used to be referred to as the Al Capone problem. You have a person whose conduct makes it difficult to charge him with his real offenses (and he was able to beat those offenses if you did charge it) through intimidation of witnesses and other non-legal mechanisms. When you do find a relatively minor offense that you can prove, do you punish him like the typical person on a first offense or do you get to consider that this is Al Capone and public safety requires imposing the maximum sentence allowed by law.

Traditionally, we have allowed judges to treat Al Capone as Al Capone and not to pretend that he is just some poor schmuck who failed to pay all of his taxes.

Posted by: tmm | Jul 31, 2019 12:42:06 PM

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