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July 15, 2023
A thoughtful defense of acquitted-conduct sentencing that ultimately betrays our constitutional design
Over at his substack "Sidebars," Randall Eliason his this lengthy new entry titled "The Case for Using 'Acquitted Conduct' at Sentencing." I highly recommend anyone interested in constitutional or policy debates regarding acquitted-conduct sentencing to jump over to this entry and to take the time to review his full argument. I will not seek to summarize or take issue with all of his points here, but I will quote parts of the end of his entry that strike me as the key element — and key problem — with his argument:
My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges. There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t. If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it. Judges are not mere passive conduits through which prosecutors work their will.
Sentencing judges have seen the same evidence as the jury. They are trained lawyers, far more experienced at evaluating evidence than jurors are. They may know things about the case and about the defendant that the jury, for various legal reasons, was not allowed to hear. They are in a strong position to make their own evaluation of the evidence and appropriate findings about the defendant’s conduct.
This is what we want judges to do. Booker restored much of the essence of judging: the ability to evaluate all the facts and circumstances and fashion the appropriate sentence for a particular defendant, not unduly bound by rigid rules, exercising both justice and mercy. Trusting the judge to do that includes trusting her to decide what facts are relevant to the defendant’s sentence, even when a jury may have rejected some charges....
Creating rules to ban the use of acquitted conduct at sentencing would improperly tie the hands of all judges in all such cases. It would require judges to ignore facts right in front of them that are directly relevant to determining the appropriate sentence. It would result in greater sentencing disparity and in sentences that do not truly reflect the totality of a defendant’s conduct.
In the movement for sentencing fairness and equity, that would be a step backward.
I concur that banning "the use of acquitted conduct at sentencing would ... tie the hands of all judges in all such cases." But that is not, as I see it, improper; it reflects the democratic design of our Constitution. Eliason calls for trusting judges (as "trained lawyers") using a civil-law standard to impose (often severe) punishment after a unanimous jury has rejected prosecutors' allegations. But, as Justice Scalia rightly stressed for the Supreme Court in his opinion in Blakely v. Washington, our Constitution codified the "Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury."
In my view, technical arguments made by Eliason and others in support of acquitted-conduct sentencing ultimately fail to respect the constitutional significance of the voice of the people in our democracy in the form of a unanimous jury acquittal. (And, critically, this vision of the significance of a jury verdict as the voice of the people is one reason why I push back at claims that using uncharged conduct is as bad or as problematic as acquitted conduct at sentencing.) Ultimately, because Justice Scalia in Blakely makes these constitutional structure points so well (and converted me), I will use his words to further explain why I view acquitted-conduct sentencing as a betrayal of our constitutional design:
That [jury trial] right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.... Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended....
The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.... [Other arguments depend on] the claim that the Framers would have left definition of the scope of jury power up to judges’ intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury....
Our Constitution and the common-law traditions it entrenches, however, do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury. See 3 Blackstone, Commentaries, at 373—374, 379—381. Justice Breyer may be convinced of the equity of the regime he favors, but his views are not the ones we are bound to uphold.
Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.
Ultimately, like Justice Breyer's dissenting opinions the in the Apprendi/Blakely line of cases, Eliason makes a strong case for why he is eager to pursue "fairness and equity" by just trusting, as Justice Scalia put it, "a lone employee of the State" to engage in a "judicial inquisition" with no regard for any unanimous jury acquittals when imposing punishment. But I am sticking with Justice Scalia's vision of the Framers’ paradigm for criminal justice so that jury trials can actually function as a "circuitbreaker in the State’s machinery of justice" rather than as just as a glorified dress rehearsals for prosecutors.
July 15, 2023 at 02:52 PM | Permalink
Comments
Thanks for the response. I think the Scalia language from Blakely made more sense in the world of mandatory guidelines. But now that we have Booker, not so much. Now the judge has regained the discretion to sentence anywhere from zero up to the maximum. And in McClinton, the sentence was in fact derived "wholly from the jury's verdict." The sentence on the counts of conviction could have been up to 27 years, but was actually 19. Had he been convicted of the other two counts he could have gotten life in prison or even the death penalty. So the jury acquittal did act as a check.
I responded in more detail here: https://twitter.com/RDEliason/status/1680625321693835268
Posted by: Randall Eliason | Jul 16, 2023 1:30:27 PM
Thanks, for the continued engagement, Randall, and I do not dispute that you can and do effectively argue the technicalities. (Though, technically, McClinton faced convictions that carried life + 20 years; the gun count had a minimum of 7 years, but no maximum, and the 7th Circuit and other courts have held life is the max for that charge. See United States v. Sandoval, 241 F.3d 549, 551 (7th Cir. 2001) ("convictions under § 924(c)(1)(A) carry a statutory maximum sentence of life imprisonment, regardless of what subsection the defendant is sentenced under").
But, as I said on Twitter, you have not really engaged with the fact the Framers did not fully trust judges, who are agents of the state, to define the proper bounds of punishment. Why bother with a jury trial right at all if judges are to be blindly trusted without jury-based procedural limits (defined, in this setting, through jury acquittals)? As Justice Scalia rightly argues, the jury is not serving its Constitutional role if "relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish."
I actually see strong constitutional arguments for jury-based sentencing in response to Article III and the Sixth Amendment (or at least for jury sentencing findings in guidelines systems that function in a law-like manner as in the federal system). But we do not see jury sentencing much except in capital cases, though that context serves as a good test for claims that we should trust just judges at sentencing without any concern for acquittals: do you think a judge should be allowed to sentence a defendant to death for, say, felony murder even if/when a jury acquits on intentional murder charges? If Congress made the charges that McClinton was acquitted and convicted on capital offenses, would you think the judge should have been trusted to sentence him to death even in the face of a unanimous jury acquittal on the murder-related charge?
Ultimately, I understand an affinity for acquitted conduct sentencing if you trust judges and do not trust juries. But I just do not think that allowing judges to formally respect, but functionally ignore, the work of juries at sentencing is consistent with the Framers' decision to champion jury trials in our Constitution twice.
Posted by: Doug B | Jul 16, 2023 1:46:10 PM
Below a previous July 9 post Doug, you observed: "We do not allow jury acquittals to be appealed (or a second prosecution) even when all would agree that such an acquittal was factually wrongful."
Even the prohibition on multiple jeopardy is misguided in my view, and I believe that the "man on the street" would share this view to retake Justice Sotomayor argument. The UK repealed it retroactively in 2003, allowing a retrial in case of newly-discovered evidence of factual guilt, just as for newly-discovered evidence of factual innocence.
The US has an welcome exception with dual sovereignty, which Scotus reaffirmed recently. It means that an acquittal by a jury can be contradicted by another verdict. Even if the facts are the same. Even if we all agree that there was less evidence of guilt at the convicting trial than at the acquitting trial, but that the convicting jury viewed them differently than the acquitting jury. At least it’s by another jury, not the bench. But there is a 1-1 tie between two juries and the defense lose it.
Posted by: Jackson | Jul 16, 2023 2:35:28 PM
Randall Eliason ,
I have posted many comments here in basic agreement with your much longer post, that due to the entirely different standards of proof )BRD vs preponderance) that there really aren't "acquitted facts".
I would, however, be very interested in your take on the "trial penalty" vs "plea leniency" framing, an argument I see being set up with very similar sorts of support.
Posted by: Soronel Haetir | Jul 16, 2023 8:01:36 PM
Jackson, on this issue and others, I surmise we have a fundamental disagreement about the sound balance between affinity for, and trust in, the punitive powers of the state and its agents and the protection of individuals from punitive state power and its agents. I generally fret what I see as a huge (and seemingly still growing) state punitive power apparatus with relatively few checks or accountability (see, eg, QI doctrines) to protect individuals. In light of that view, I would like to see the few existing checks on state power, like the jury trial right, be given deep respect and not be subject to continued erosion via technicalities. (I focus particularly on sentencing issues, so problematic, excessive and misguided incarceration especially garner my attention.)
I sense you are troubled by even limited checks and limits that might be placed on state's punitive powers to go after the individual, perhaps because you trust police and prosecutors and judges and other state agents to never misuse or misdirect massive state punitive powers. The crux of Eliason's argument is that we should be "trusting of judges" to impose decades of prison time when the people in the form of the jury have unanimously rejected the prosecutors' charges being cited by prosecutors as the basis for putting the person in a cage for many more years. I just want to give some more respect to the people in this setting.
Posted by: Doug B | Jul 17, 2023 9:11:20 AM
Professor Berman,
If by "state" you simply mean "country" I do agree that the federal government has expanded its scope beyond all constitutional bounds, but if you actually mean the individual states of the United States I have to vehemently disagree. The general police powers were meant to be entirely a creature of the individual states and there, for example, were some individual state to pass a law criminalizing the possession of jelly beans who am I to say this is beyond the power of the state?
As for sentence lengths, there too we have significant disagreement. Based on case closure rates I actually believe we have a vast under-incarceration problem rather than excessive.
Posted by: Soronel Haetir | Jul 17, 2023 11:42:50 AM
Doug -
Not trying to beat a dead horse, but I can't let the suggestion that I "don't trust juries" go by. As a former prosecutor I actually trust them a lot, and believe they do a good job and try to do the right thing. It's just that I recognize an acquittal can happen for lots of reasons and doesn't necessarily decide whether the facts related to the acquitted charge should be relevant to sentencing.
But that's kind of the idea of checks and balances, right? No one gets trusted completely. Judges have their sentencing discretion limited by the legislature and by the scope of the jury verdict, and jurors are limited to determining guilt but are not trusted to impose punishment, or necessarily with all of the facts due to rules of evidence.
I see that you're right about the maximum sentence for the gun charge - thanks for that correction. But I don't see how it helps your argument. It just further highlights how the judge was not nearly as harsh as he could have been in McClinton's case. And the sentence imposed derived "wholly from the jury's verdict," as Scalia said should be required. That's why I suggest it seems to me your real complaint is with the high maximum penalties provided for many crimes, not with sentencing practice.
It sounds like you would favor the system advocated for by the remedy dissenters in Booker - submit all the relevant sentencing facts to the jury for a beyond a reasonable doubt finding?
Posted by: Randall Dean Eliason | Jul 17, 2023 12:34:31 PM
Soronel - I think the whole "trial penalty" argument is a made-up/semantic one. Although they are rare, trials are still the baseline norm in the system, as is the sentence that follows a trial. A defendant isn't penalized for going to trial, they get a break for pleading guilty. And that makes sense because a guilty plea is a sign of other things relevant to a reduced sentence, such as remorse and acceptance of responsibility.
Posted by: Randall Dean Eliason | Jul 17, 2023 12:36:55 PM
Hey Randall, you say jurors "are not trusted to impose punishment." That is not accurate in all capital systems, in the military system, and in a few state systems. More broadly, because I am a fan of juries as the voice of the people, I would like to see juries have a much bigger role in sentencing, at least in felony cases. At the very least, I think they should always be informed of the sentencing consequences of their verdicts -- especially if/when any mandatory minimums might be applicable. More generally, I have lots and lots and lots of gripes with statutory sentencing provisions AND sentencing practice (both substantively and procedurally). That's one of many reasons I have this blog, so I can complain almost endlessly about the many flaws I see. Acquitted conduct is one that I find especially ugly, though it is one part of broader complaints I have with using procedures even less protective of defendants than civil justice systems (in the US and elsewhere).
Saying that "an acquittal can happen for lots of reasons and doesn't necessarily decide whether the facts related to the acquitted charge should be relevant to sentencing" is kind of like saying "voters can elect a candidate for many reasons and that doesn't necessarily decide which candidate may really have the best policies." Juries matter not because of their expertise as fact-finders; they matter as the voice of the people in the operation of our criminal justice system. Whether we honor or undercut their work is ultimately about whether we respect their democratic role in a criminal justice system otherwise run by government bureaucrats. Bureaucrats, I suspect, often think they know better than "the people." Ergo, as Justice Scalia puts it, "the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury."
I think the dissenters' remedy in Booker would be much more in keeping with 5th and 6th Amendment traditions and values, though as a policy matter I think we need to dramatically simplify the guidelines to have a mostly "charge offense" sentencing system (as the states have) rather than the complicated "real offense" system the FSG give us. More broadly, I'd likely favor non-capital felony punishment administered using a process similar to capital punishment --- with juries, in addition to deciding guilt, getting to make a recommendation as to punishment after a distinct punishment phase --- though I would always want to authorize judges to reduce punishments below what juries recommended.
Posted by: Doug B | Jul 17, 2023 1:46:44 PM
Doug, as a general matter, the state is also here to prevent more individuals to become victims. Affinity for the culprit can be cruelty for the offended. Especially in the case of double jeopardy prohibition, where applied literally that would mean no punishment at all even for a subsequently proven child killer.
The way you characterize my position ("trust police and prosecutors and judges and other state agents to never misuse or misdirect massive state punitive powers"), is not fairer than if I said that you believe that jury acquittals can never be wrong; although I don’t know whether you agree with the dual sovereignty rule. On acquitted conduct, it is obvious that you are much more interested in the "check to the government" part than in the "the people" part of the argument.
For the "man on the street", it is the prohibition on multiple jeopardy that applied literally would be an absurd "technicality". I also agree that the standard of proof is not a technicality, but a substantive rule.
Improving or modernizing criminal justice doesn’t always mean more rights for the defense. The prohibition on double jeopardy existed in England when capital defendants had no right to counsel nor to appeal. One can say that it is all these rules that were outdated and have been fortunately repealed.
Dual sovereignty is a welcome exception, although the British exception is better, as it is a forensic, cartesian one; while the US exception is a political one, but the only one that is defensible in the current American constitutional context.
To prevent abuse of the multiple jeopardy possibility, the UK limited it to grave crimes and provided a gatekeeping, as the permission to retry must be requested by the top prosecutor for England and Wales, and granted by the highest court just below the Supreme Court. That is far from unlimited truth and power for government.
Posted by: Jackson | Jul 17, 2023 2:16:37 PM
This discussion thread is SL&P at its best, and I congratulate and thank all its participants.
Posted by: Bill Otis | Jul 17, 2023 2:28:47 PM
Speaking as one of those who actually practices in a system with jury sentencing, juries take acquitted conduct into consideration when imposing sentence. You might not be sure that there is enough there to to convict the defendant of molesting the second child, but you are willing to bump up the sentence length beyond what you would have imposed if you only knew about the one potential victim. Or, on the borderline case of sudden passion (just enough there that I can't say beyond a reasonable doubt that it was murder two instead of manslaughter), a jury can definitely opt to sentence on the high side of the sentencing range.
The BRD applies to those facts which automatically alter the range of punishment. It does not apply to the sentencing decision itself. See Kansas v. Carr.
Posted by: tmm | Jul 17, 2023 5:54:03 PM
Thanks, tmm. I am less troubled by jury consideration of acquitted conduct because jury sentencing determinations reflect the voice of the people.
Posted by: Doug B | Jul 17, 2023 9:13:29 PM
A jury taking account conduct it acquitted itself: that would be hard to avoid, since that is the kind of information that the judge cannot ban them to hear, and that they don’t have to issue written grounds, nor to testify about their deliberations.
If juries are the voice of "the people" and entrusted with sentencing, the judge should be bound by their penalty choice, and not be allowed to either rise or reduce it, for both capital and noncapital cases.
Posted by: Jackson | Jul 17, 2023 10:00:06 PM
Doug and tmm --
I'm fine with the jury taking account of acquitted conduct, not because the jury is the voice of the people (and it's the voice of only 12 people who might, or might not, be genuinely representative), but simply because the jury knows best what it believes. If its acquittal meant that it concluded the defendant didn't do it, then of course it's not going to take that conduct into account in deciding the sentence. If, however, the acquittal meant, "We're quite persuaded the defendant did it, but the prosecutor overcharged this case and needs to learn to dial it back a bit," then of course it should be free to adjust the sentence according to what it believes to be the truth.
Posted by: Bill Otis | Jul 17, 2023 10:43:47 PM
Even when the sentencer is a judge, he might take account of the acquitted conduct in his mind to raise the penalty, but neither say nor write it.
Even if acquitted conduct consideration were officially prohibited, what could be done against that?
Posted by: Jackson | Jul 17, 2023 10:44:08 PM
Jackson: Judges might also take into account race and religion and all sorts of other constitutionally suspect factors to impose more prison time (consciously and/or unconsciously). That reality does not mean we should have sentencing guidelines which (a) expressly require judges to increase (advisory but always influential) prison ranges on the basis of race and religion, or (b) encourage prosecutors to advocate that judges increase these prison ranges on the basis of race and religion.
Carrying this analogy further, imagine if competent defense attorneys were duty bound to tell their black and Muslim clients that, regardless of the facts, they should always plead guilty and beg for mercy because the sentencing guidelines expressly require judges to increase (advisory but always influential) punishment ranges on the basis of race and religion and that prosecutors will always be advocating for longer ranges on that basis. Do you think such a system would be consistent with our constitutional values even though it is surely true that judges might (consciously or unconsciously) think about race and religion when sentencing?
I extend the analogy because this plea dynamic contributes to what, in my view, makes acquitted conduct sentencing in the federal system especially pernicious. If a normal defendant is clearly guilty of, say, just one of 37 charges brought against him, a normal defense attorney would really be duty bound to advise that defendant that he could end up with a better sentencing outcome by lying and pleading guilty to all 37 charges since he might well be sentenced on all 37 counts even if acquitted on 36 of them. I do not think it is consistent with our constitutional values for competent defense attorneys to have to tell a (sometimes overcharged) defendant that our sentencing system will likely treat him much better after lying to say he is guilty of three dozen charges than it will if he invokes his constitutional jury trial rights and gets vindicated by a jury on 97% of the charges.
Posted by: Doug B | Jul 18, 2023 9:18:07 AM
Doug --
-- I completely agree that judges should not smuggle in impermissible sentencing factors, whether or not they can get away with it. The system needs honesty not subterfuge. The judge should say exactly what he's doing and why. He has to follow the law whether he likes it or not (just like the defendant, the prosecutor, the defense lawyer, and all the rest of us).
-- Sentencing on the basis of race or religion is obviously and flagrantly unconstitutional. Sentencing on the basis of "acquitted conduct," if proved by a preponderance, is perfectly constitutional under existing law (Watts), law the Court seems to want to leave where it is. Congress could bar federal sentencing on the basis of acquitted conduct, but has never done so over many decades of complaining about it and isn't going to now either.
-- A massive bi-partisan majority in Congress adopted Sentencing Guidelines in the 1980's based on a real offense system, given the quite sensible view that the sentence should be based on the whole of the defendant's behavior, good (as defense lawyers insist, which is why the defendant's mother gets called at the sentencing hearing to testify that he was a nice teammate in Little League 20 years ago) and bad. For one thing, if we're serious about rehab, it's just foolish to put on blinkers about everything that's going on in how the defendant has been behaving.
Posted by: Bill Otis | Jul 18, 2023 11:26:54 AM
Bill, the US House last year voted for the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a vote of 405 to 12. So there we have recent evidence of considerable bipartisan support for prohibiting acquitted conduct, though of course votes in two houses are needed to make law (there was never a vote in the Senate in the last Congress).
In addition, 3553(a)(6) provides that judges should be concerned at sentencing with "the need to avoid unwarranted sentence disparities among defendants with similar records who have been **found guilty** of similar conduct." The use of the "found guilty" language here in the Sentencing Reform Act of 1984 --- as well as other references in the Act to offenses of which a defendant "has been convicted of" --- suggests to me that Congress back in 1984 did not give any thought serious thought to acquitted conduct issues and surely did not mean to formally authorize a guideline system in which pushing was increased on the basis of acquitted conduct more than "found guilty/convicted" conduct.
Posted by: Doug B | Jul 18, 2023 12:30:38 PM
Doug --
-- Yes, you do need to get a vote in the Senate. I think I know something about that. But for however that may be, last year's House is as different from this year's House as I am from Hillary Clinton.
-- I agree that Congress, in considering the SRA of 1984, was not thinking per se of acquitted conduct, but was definitely thinking of a real offense vs. a charged offense sentencing system. After lots and lots of deliberation, it chose the former. And it legislated against the backdrop of then-existing law, which was that acquitted conduct could be and routinely was considered. In that sense, Watts, decided 13 years later, was merely a ratification of the status quo ante.
Posted by: Bill Otis | Jul 18, 2023 12:58:46 PM
Technically, Bill, the new House has only 74 new representatives, so the House now is 80% the same as the House last Congress that voted overwhelmingly for prohibiting acquitted conduct sentencing. But the leadership is very different, and I am certainly not expecting any CJ reform moving out of either chamber anytime soon.
Also, technically, approving a real-offense sentencing system is not the same as blessing a system in which someone can get more punishment for acquitted conduct than for conviction conduct. But Congress has let an acquitted conduct stay in place for 30+ years, so I think it very fair to say Congress has been just fine with such a system.
Posted by: Doug B | Jul 18, 2023 2:15:08 PM
