"Acquitted. Then Sentenced."

The title of this post is the terrifically economical title of this new commentary authored by Shana O’Toole is the founder and president of the Due Process Institute.  As regular readers surely realize, the commentary focuses on a remarkable sentencing reality that has long troubled me and it discusses the possibility that a legislative fix may be in the works.  Here are excerpts from a piece I recommend (including a footnote that I consider especially important):

Imagine being accused of robbery and murder, but ultimately being found not guilty by a jury of your peers.  Now imagine that just two years later, you are indicted again for a wholly unrelated and less serious criminal offense. You voluntarily plead guilty, expecting to receive a fair sentence. The prosecutors, the probation office, and your defense lawyer all agree that current law sets an appropriate prison sentence ranging between 2.5 years to 3.5 years.

Your case is then assigned to the same judge who presided over your first case.  She sentences you to eight years in prison — more than double the highest end of the range that anyone else involved in the criminal legal system would have told you to expect.  And when she does so, she explains that when she went back over her old notes from your first trial, she determined there is a 51% chance that you should have been found guilty of those crimes, so she’s ignoring the jury’s earlier verdicts and now basing your sentence for this crime on those past unproven crimes.

If you think this describes what happens in a bad movie or under some authoritarian regime, you're wrong.  This describes a real case, and the practice is known as acquitted conduct sentencing.

Earlier this year, a bipartisan group of senators introduced legislation that will provide much-needed reform.  Tomorrow, this bill, the Prohibiting Punishment of Acquitted Conduct Act, will face its first major hurdle: a Senate Judiciary Committee markup.

The bill is a first step to addressing the many injustices caused by acquitted conduct sentencing.  It will prohibit federal judges from increasing a person’s prison sentence for one offense on the basis of another offense for which a jury had found the person not guilty.

Perhaps the most apparent problem with acquitted conduct sentencing is that it erodes our system’s presumption of innocence and the fundamental principles of fairness and justice.  Many lawyers and activists argue that it undermines the Sixth Amendment right to a jury trial — a pillar of the American criminal legal system, which requires that juries, not judges, determine the facts essential to a prison sentence.

Yet acquitted conduct sentencing remains permissible in every federal court and a majority of state courts. While the actual number of impacted persons has yet to be quantified,[FN1] based on the number of federal appeals we know that the practice is widespread.  At my organization, the Due Process Institute, our office mailbag is full of letters from those trapped behind prison walls who are serving sentences well past what their actual convictions should have brought them.

[FN1] It is almost impossible to say how many people have been directly impacted by the practice since no entity in our federal legal system currently tracks that data. No judge in any of our 94 distinct federal judicial districts is required to document when he or she relies on acquitted conduct in their sentencing decision. And there is often inadequate documentation of acquitted conduct sentencing placed on the public trial record....

Some members of the Supreme Court have raised concerns.... The view that acquitted conduct sentencing is unconstitutional has also won support from lower court judges across the political spectrum.  But the majority of the Supreme Court appears to remain unconvinced.

Without Supreme Court action, we must look to Congress for a remedy.  Thankfully, the legislative fix for this problem is relatively easy. Congress need only amend the law to explicitly exempt the use of acquitted conduct as a basis for increasing a person’s sentence.  The congressional history of 18 U.S. Code § 3661 — the part of the law dealing with the use of information for sentencing — indicates that the law was enacted to provide broad discretion to federal judges when considering information during sentencing.  But it does not appear that the statute was explicitly enacted to permit the specific practice of acquitted conduct sentencing.

The political case for abolishing the use of acquitted conduct at sentencing should appeal to sensibilities on both sides of the political aisle.  That’s why the Senate bill and a similar one in the House of Representatives have each received support from Democrats and Republicans.  In an era in which such bipartisan agreement is increasingly rare, this is an opportunity for Congress to pass meaningful legislation that will make our justice system more fair and effective.

It’s time to put an end to acquitted conduct sentencing, and the Senate’s legislation is a good start.  Tomorrow, the Judiciary Committee should vote to move this legislation forward unamended and allow it to come to the Senate floor for a vote.