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Brief in Support of Certiorari
U.S. Supreme Court
The federal courts of appeals currently permit sentencing judges to impose a punishment that is based on criminal charges that the jury actually rejected. In this amicus brief, we argue to end the continuation of this unconstitutional practice, known as acquitted conduct sentencing. SCOTUS has repeatedly directed sentencing courts to adhere to the Sixth Amendment by ensuring any sentence imposed derives from the jury’s verdict and does not functionally exceed what would have been permitted by that verdict.
Petition for certiorari denied June 30, 2023. Justices Sotomayor, Kavanaugh, Gorsuch, and Barrett joined in raising objections to the denial, which you can read here.
Brief in Support of Certiorari
U.S. Supreme Court
At issue is the per se rule in antitrust law and its implications for the Fifth and Sixth Amendment rights to the finding by a jury that a defendant is guilty beyond a reasonable doubt.
Filed with Cato Institute.
Petition for certiorari denied May 2, 2022.
Due Process Institute thanks Sharon Frase, Martha Boersch, and Matthew Dirkes of Boersch & Illovsky LLP for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
A jury acquitted the defendant of the most serious charges against him, but the judge at sentencing decided to base sentencing calculations and his 20-year sentence on jury-rejected facts. In this amicus brief, we argue sentence enhancements based on jury-rejected facts undermine the jury’s constitutionally-defined role in our criminal system and the protections of the Fifth and Sixth Amendments.
Petition for certiorari denied February 22, 2022.
We thank Professor Douglas Berman for his pro bono work on this case.
Amicus Brief in support of Appellant
5th Circuit Court of Appeals
Filed Nov. 1, 2019
TOPICS: right to jury trial; trial penalty
This case–perhaps the first of its kind–asks the court to consider if the government has pursued a “trial penalty” (in which they added charges and recommended a higher sentence) against a defendant who exercised her right to trial.
Filed with American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Texas, Cato Institute, NACDL, and Texas Public Policy Foundation.
OUTCOME: The United States Court of Appeals for the Fifth Circuit agreed with us that federal Circuit courts have a duty to determine whether a district court sentenced an individual more harshly because they went to trial instead of pleading guilty. However, the court failed to find that this occurred in this case. You can read the court’s full opinion here.
Amicus Brief in Support of Certiorari
U.S. Supreme Court
Filed Apr. 15, 2020
TOPICS: judicial fact-finding; parole eligibility; Apprendi
The Supreme Court has previously ruled that any facts which increase the range of possible punishments for a defendant’s criminal conviction must be found by a jury beyond a reasonable doubt. Our brief tackles whether the Constitution also requires that state statutes that increase the minimum time a defendant must serve in prison before being released on parole be invalidated under the 6th and 14th Amendments.
OUTCOME: Unfortunately, the petition for certiorari was denied June 22, 2020.
Due Process Institute thanks Kendall Turner for her pro bono work on this case as well as National Association for Public Defense for joining our brief in support of the 6th Amendment.
Amicus Brief in support of Certiorari
U.S. Supreme Court
Filed Aug. 13, 2019
TOPIC: acquitted conduct sentencing
In this brief, we argue that the 6th Amendment right to a jury trial prohibits judges from basing sentences on charges for which juries have acquitted criminal defendants.
OUTCOME: Unfortunately, the petition for certiorari was denied Feb. 24, 2020.
Amicus Brief in Support of Respondent
U.S. Supreme Court
Filed Jan. 25, 2019
TOPICS: judicial fact-finding; supervised release; Apprendi
In this brief, we argue the portions of 18 U.S.C. § 3583(k) that require a district court to revoke supervised release and to impose re-imprisonment based on a finding by a preponderance of the evidence that respondent violated the conditions of his release are unconstitutional.
Due Process Institute wishes to thank David T. Goldberg for his pro bono work on this case.
OUTCOME: In a 5-4 decision, the Supreme Court agreed with Due Process Institute and ruled in favor of Haymond. Read the opinion by Justice Gorsuch here.
Amicus Brief in Support of Certiorari
U.S. Supreme Court
Filed Aug. 23, 2018
TOPIC: 6th Amendment attachment pre-indictment
In this brief, we argue the 6th Amendment right to counsel attaches before an indictment in a situation where a prosecutor threatens to indict a defendant unless the defendant accepts a plea offer.
Due Process Institute wishes to thank Cozen O’Connor for their pro bono work on this case, particularly Stephen A. Miller, Barry Boss, and Kara L. Kapp.
We also thank Cato Institute for joining our brief in support of the 6th Amendment.
OUTCOME: Unfortunately, the petition for certiorari was denied on June 24, 2019.
Amicus Brief in Support of Certiorari
U.S. Supreme Court
Filed Dec. 20, 2018
TOPIC: acquitted conduct sentencing
We argue the 6th Amendment right to a jury trial prohibits judges from basing sentences on charges for which juries have acquitted criminal defendants.
Due Process Institutes wishes to thank Timothy O’Toole and Sarah A. Dowd of Miller & Chevalier for their pro bono work on this case.
OUTCOME: Unfortunately, the petition for certiorari was denied on Jan. 14, 2019.
Amicus Brief in support of Certiorari
U.S. Supreme Court
Filed Oct. 2019
TOPICS: confrontation clause; sentencing enhancements; relevant conduct; appellate standard of review
In this brief, we attempt to resolve a circuit split on the appropriate standard of review for sentencing enhancements based on unsworn out-of-court statements of cooperating witnesses, in favor of requiring de novo review.
Due Process Institute thanks John Cline for his pro bono work on this case as well as the law professors and following organizations for joining our brief: Cato Institute, District of Columbia Association of Criminal Defense Lawyers, NACDL, Pennsylvania Association of Criminal Defense Lawyers, Rutherford Institute, and Texas Association of Criminal Defense Lawyers.
OUTCOME: Unfortunately, the petition for certiorari was denied on Oct. 15, 2019.
Amicus Brief in support of Certiorari
U.S. Supreme Court
Filed Oct. 24, 2019
TOPICS: per se rule; presumptions that remove element of crime from jury’s consideration
We argue that the per se rule in antitrust law operates to relieve the government of its burden to prove an essential element of a criminal offense and thus violates a defendant’s 5th and 6th Amendment rights.
For more information, please visit our 5th Amendment Amicus Briefs collection.
DPI President Quoted in Law360 on Supreme Court Case
June 26, 2019–Due Process Institute President Shana O’Toole was quoted in Law360 regarding the recently decided criminal law Supreme Court case Haymond v. United States:
“Shana-Tara O’Toole, founder and president of the nonprofit Due Process Institute, which filed a brief supporting Haymond, said the ruling protected the rights of criminal defendants and may point the way to more robust jurisprudence on the limits of sentencing.
One example O’Toole raised is the ‘long-standing question’ of whether judges may factor in conduct that has led to an acquittal in sentencing defendants for a charge where they have been convicted. ‘We are pleased to see Justice Gorsuch and the majority of the court recognize the importance of the right to jury trial in our constitutional system and hope that it is a signal of where a majority of the court might be on similar questions,’ O’Toole said.”