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September 17, 2015 Articles

Not Guilty but Might as Well Be: Ending Acquitted Conduct Sentencing

Congress should eliminate acquitted conduct sentencing, as the practice goes against the basic assumptions of criminal procedure.

By Dillon Malar

No fact about federal criminal practice so consistently astounds and frequently disgusts the uninitiated, lawyers and non-lawyers alike, as the fact that you can be imprisoned for decades based on conduct that a jury finds you not guilty of committing. Such a seemingly unfair and incongruous outcome is possible and not uncommon thanks to the concept of acquitted conduct sentencing, which is codified in and, to a certain extent, required by the United States Sentencing Guidelines. While the Supreme Court has so far declined to directly address the constitutionality of acquitted conduct sentencing, courts of appeals have taken the Court’s silence as approval and uniformly affirmed the constitutionality of sentences based largely on acquitted conduct since the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997), which approved acquitted conduct sentencing but failed to adequately address the constitutional concerns.

However, with the recent growth in bipartisan support for federal criminal sentencing reform, a possible path now exists to ending the practice without the Supreme Court having to consider the issue and without having to deal with the potential consequences of ruling the practice unconstitutional. Abolishing acquitted conduct sentencing would not only serve to reduce the harshness of sentences dispensed by federal courts, thus reducing the federal prison population, but would also end a practice widely thought blatantly violative of defendants’ Fifth and Sixth Amendment rights. This article explores the state of the law surrounding acquitted conduct sentencing and argues that Congress should do what the Supreme Court has been unwilling to do and abolish acquitted conduct sentencing.

“The Unbroken String of Cases Disregarding the Sixth Amendment”
Last year, there was hope among sentencing reform advocates that the Supreme Court would grant certiorari in United States v. Jones, 744 F.3d 1362 (D.C. Cir. 2014). The case presented the perfect illustration of the harsh outcomes that can result from acquitted conduct sentencing. After a lengthy trial on charges that included racketeering and high-level drug trafficking offenses, Joseph Jones, Antwuan Ball, and Desmond Thurston were found not guilty of all of the most serious charges against them. They were found guilty of only the relatively minor offenses of cocaine sales ranging from 2 to 11 grams. Based on the counts of conviction alone, Mr. Jones and his codefendants would have faced advisory guidelines sentences ranging from 27 to 71 months. However, pursuant to United States Sentencing Guidelines Manual section 1B1.3-4, the district judge found that Mr. Jones and his codefendants had engaged in a much larger drug distribution conspiracy involving many kilograms of drugs, despite the fact that the jury had acquitted them of the exact same charges. Although the guidelines have been advisory and nonbinding since United States v. Booker, 543 U.S. 220 (2005), section 1B1.3 requires that courts take relevant conduct, and thus acquitted conduct, into account when calculating the guidelines. The Supreme Court has repeatedly held that an accurate guidelines calculation must be the starting point for a procedurally reasonable federal sentencing. So, while district courts are not required to sentence on acquitted conduct, they are required to consider it when determining the starting point for sentencing.

In Jones, the acquitted conduct found by the judge increased the defendants’ guidelines ranges dramatically. Based on these inflated guidelines ranges driven up by the acquitted conduct, the court sentenced the defendants to terms of 180, 194, and 225 months in prison. For the purposes of sentencing, the jury’s verdict on specific counts was essentially rendered meaningless. In realistic terms, Mr. Jones, Mr. Ball, and Mr. Thurston were sentenced to spend decades in prison based mostly on charges for which 12 jurors unanimously found them not guilty.

Despite the compelling facts of Jones, the Supreme Court denied certiorari, coming up one vote short of the required four justices. However, Justice Scalia, joined by Justices Ginsburg and Thomas, took the rare step of issuing a dissenting opinion in the denial. Jones v. United States, 135 S. Ct. 8 (2014). In the dissent, Justice Scalia argued that, based on Supreme Court precedent interpreting the Fifth and Sixth Amendments decided since Watts, “any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.” Id. He wrote that the Supreme Court’s silence regarding the constitutionality of acquitted conduct sentencing, interpreted by lower courts as approval, had “gone on long enough” and that the Court “should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment.” Id.

Passing Up the Case They Have Been Waiting For
The Supreme Court’s hesitancy to address the issue in Jones despite the case presenting “the nonhypothetical case the Court claimed to have been waiting for” (id.) is somewhat puzzling. Some sentencing experts have speculated that the Supreme Court refused to grant certiorari in Jones because it was unprepared to deal with the related and broader issue of sentencing based on relevant conduct. While relevant conduct sentencing does not immediately set off constitutional alarm bells the way sentencing a person for a crime a jury says the person is not guilty of does, it raises the same Fifth and Sixth Amendment issues regarding sentencing defendants based on judicial fact finding made by preponderance. Unlike acquitted conduct, which can only be an issue if a defendant goes to trial and is acquitted on some charges, relevant conduct determinations are potentially an issue in every single federal sentencing. It is not surprising that the Court might tread very carefully when considering whether to take a case that could result in a ruling that could fundamentally alter how federal courts sentence defendants.

Another consideration that might have prevented the Court from taking up the issue is fear of the retroactivity implications of declaring acquitted conduct sentencing unconstitutional. While the retroactivity implications of such a decision pose a complex issue fit for an article of its own, it is imaginable that the possibility a decision could spark hundreds or thousands of habeas corpus petitions, all requiring full re-sentencings, might give the less bold justices significant pause. This consideration becomes even more significant when taking into account the impact that striking down acquitted conduct sentencing could have on relevant conduct sentencing, which could in turn lead to even more significant retroactivity issues. Finally, there is the embarrassment or “black-eye” consideration that the Supreme Court simply would not like admitting that it has been fundamentally wrong on such a basic issue of criminal procedure.

Taken together, it seems that the decisions of the six justices who decided not to support certiorari in Jones were likely motivated to pass on the case for reasons other than the legal merits, and this hesitancy evidences an unwillingness to deal with the weighty and wide-ranging issues presented by striking down acquitted conduct sentencing.

Why Congress Should Strike the Final Blow to Acquitted Conduct
The congressional route to ending sentencing on acquitted conduct avoids all of the aforementioned complicating factors that the Supreme Court would face if it struck down acquitted conduct sentencing. A congressional enactment or amendment to the Sentencing Guidelines that simply forbade sentencing a defendant on acquitted conduct would solve the issue prospectively and would not create any issues of retroactivity. It would also make it much easier for the Supreme Court to avoid ever ruling on the constitutionality of acquitted conduct sentencing or setting a precedent that may ultimately forge a path to a successful challenge of relevant conduct sentencing. If the Supreme Court avoids ever ruling on the issue, it would be able to avoid ever having to admit it was wrong on the issue. However, legislative amendment of the Sentencing Guidelines is not a good outcome for the likes of the Jones defendants and the hundreds or thousands of other federal inmates whose sentences are based largely on conduct for which they were found not guilty by a jury because the Supreme Court would likely avoid ever making a decision that could retroactively apply to them. However, the possibility of ending acquitted conduct sentencing prospectively should not be passed up on the basis that it makes a more wide-ranging judicial resolution less likely. It is impossible to know when, if ever, the Supreme Court will take up the issue.

Congressional abolition of acquitted conduct sentencing would accomplish the goals of decreasing the prison population, reducing overly harsh sentences, avoiding costly appeals, and promoting an overall sense of fairness in the criminal justice system. For the first time in many decades, there is a general bipartisan consensus that these are goals worth pursuing. Accordingly, Congress should not miss the opportunity to do away with a distasteful practice that is inconsistent with basic assumptions of American criminal procedure and that, in the words of Justice Scalia, has “gone on long enough.”

Keywords: criminal litigation, acquitted conduct, sentencing, Sixth Amendment

Dillon Malar is an associate at Baldassare & Mara, LLC, in Newark, New Jersey.

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