By Shana-Tara O’Toole | Due Process Institute | President
Update: In February 2020, The United States Supreme Court declined to hear two cases challenging the practice of acquitted conduct sentencing. This development underscores why our legislative efforts through the #JuriesDecide campaign are so important if we hope to end this practice that undermines a fundamental protection established by our Founders.
The criminal jury is one of the most fundamental expressions of popular sovereignty in our Constitutional system. Through it, the public serves as a bulwark between the individual and government power. One of the most invidious encroachments on the power of the jury has been the reliance on “acquitted conduct” (criminal charges for which a jury has found the defendant “not guilty”) during the sentencing phase.[1]
Acquitted conduct sentencing punishes defendants with terms of imprisonment for charges the government failed to prove to a jury. Yet, the presumption of innocence until guilt is proven beyond a reasonable doubt is fundamental to the American criminal justice system. The practice of acquitted conduct sentencing undermines this core presumption—incentivizing prosecutors to pursue flimsy criminal charges at trial and allowing judges to sentence individuals to prison for years on unproven allegations. Acquitted conduct sentencing also disregards jury acquittals, thus ignoring the jury’s historic and democratic role in our criminal justice system. A “not guilty” verdict should be insulated from judicial override in order to retain the Constitution’s intentional and crucial independent procedural checks on government power.
Shockingly, acquitted conduct sentencing is permissible in every federal court in the country as well as in a majority of states. How many people have been impacted by the practice? It’s hard to say—the Due Process Institute is currently working on drafting a report to quantify and describe the problem—but there are more than 20 published federal circuit court opinions that have addressed challenges to the practice. The extent of the problem is certainly more widespread than that.
How is it that most courts continue to bless this unconstitutional practice? The first piece of that puzzle is United States v. Watts, 519 U.S. 148 (1997). In Watts, a jury convicted the defendant of possessing cocaine base with intent to distribute but acquitted the defendant of using a firearm in relation to the drug crime. Despite the acquittal, the sentencing judge determined—based on a mere preponderance of the evidence standard—that the defendant had possessed the guns and therefore increased the defendant’s prison term calculation under the Sentencing Guidelines. The 9th Circuit disagreed with every other federal circuit court at the time and held that it was improper to increase a prison sentence based on alleged unproven conduct of which the defendants had been acquitted. The government appealed and the Supreme Court accepted the case for review.
The High Court started their inquiry by looking at 18 U. S. C. § 3661, which states: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” The Court then moved on to an analysis of various Sentencing Guidelines provisions, which were mandatory at the time. In a 7-2 per curium opinion, the Court reversed the 9th Circuit, holding that sentencing courts are permitted to base a defendant’s sentence on acquitted conduct. (Justices Kennedy and Stevens [2] dissented.) In so ruling, the Court did not engage in an analysis as to the fundamental question of whether acquitted conduct sentencing violated Constitutional guarantees under the 6th Amendment.[3] It merely held that it did not violate the Double Jeopardy clause with very little time spent on even that analysis. Yet, time and time again, lower federal courts have continued to ignore 6th Amendment challenges to acquitted conduct sentencing based on the Watts decision.
Judicial reliance on Watts has persisted even after the decision in United States v. Booker,[4] in which the Supreme Court explicitly recognized that the Watts case had not involved an analysis of whether acquitted conduct sentencing violated the 6th Amendment and explained that the Court in Watts had not even permitted full briefing on the case nor had they even heard oral argument. Therefore, despite a large body of lower court case law that erroneously states otherwise, it is imperative that we all understand that the question of whether acquitted conduct sentencing violates the 6th Amendment is still unanswered by the Supreme Court.[5]
The Sixth Amendment jury trial right is one of the critical pillars of our criminal justice system. In the 1980’s and 1990’s, however, state legislatures and Congress threatened the primacy of this right by passing a series of laws permitting judges to engage in expansive fact-finding at sentencing that went well beyond any facts found by the jury. In response, the Supreme Court held the constitutional line true in a series of cases beginning with Apprendi v. New Jersey.[6] In Apprendi and its progeny, the Supreme Court restored the Framers’ vision by reaffirming that juries must find all facts essential to a lawful sentence. Therefore, if sentencing judges cannot go beyond a jury’s verdict, they certainly cannot contravene a jury’s verdict and still comply with the Sixth Amendment’s guarantee.
Maddeningly, however, the Supreme Court has repeatedly failed to accept review of appeals that would put the practice of acquitted conduct sentencing under the microscope. The most famous of these is Jones v. United States[7] in which Justice Scalia ultimately authored a dissent to the Court’s decision not to accept the case for review, in which he was joined by both Justices Thomas and Ginsburg. But the case’s earlier history is just as intriguing.
In 2005, a federal grand jury charged 18 individuals with the operation of an allegedly expansive narcotics conspiracy in Southeast Washington, DC, known as the “Congress Park Crew.”[8] The Government extracted guilty pleas from 11 of the defendants, but the remaining defendants exercised their right to a jury trial. The trial commenced in February 2007 and 8 months later a unanimous 12 person jury returned its verdict acquitting the men of the most serious charges—conspiracy to distribute drugs and racketeering. However, the jury did convict the men of the distribution of cocaine based on what even Justice Scalia later described as “very small amounts of crack cocaine.”
Based solely on the crime of conviction, the Sentencing Guidelines recommended prison sentences between 27 and 71 months (or between 2 and 6 years) for the defendants. At sentencing, the Judge found, by a mere preponderance of the evidence, that the alleged conspiracy the jury had rejected actually existed, and thus attributed a substantially larger quantity of drugs to the men than the jury’s verdict indicated, and subsequently calculated their Guidelines range based on those findings.
As a result, the court sentenced the men to 180 months (15 years), 194 months (16 years), and 225 months (almost 19 years) imprisonment. This represents an approximate 300% increase of the sentences recommended by the Guidelines if the acquitted conduct had not been considered. The opinions in two of these cases (Bell and Jones) drew stinging separate opinions from then-Judge Brett Kavanaugh as well as his colleague, Judge Patricia Millett, regarding the use of acquitted conduct to increase the men’s sentences.
The case made even more headlines when the Washington Times published a letter from one of the jurors to the sentencing judge.[9] The letter conveys a real-life evaluation of the practice from the point of view of a citizen, and is a moving explanation of the numerous ways in which acquitted conduct sentencing subverts the role of the jury in our criminal legal system:
I write because I recently saw a press release from the US Attorney’s Office which states that Gregory Bell and Joseph Jones were sentenced to 16 years and 15 years, respectively, “for their roles in this case”. It also states that Antwuan Ball, Desmond Thurston, and David Wilson “each face up to 40 years imprisonment for the narcotics crimes for which they were convicted.”
Can this be true? We as a jury found these individuals guilty of somewhere around 20 instances of selling drugs, but as I remember it, most of these were very small amounts. And this was over a period of nearly 10 years. Now I’m not a lawyer, but after 30 years of living in the District, I believe people selling small amounts of crack on the street usually end up with . . . only a year or two….
The District Attorney’s press release states that “The government presented evidence that [these individuals] were members of a crew that had engaged in a series of crimes, including crack cocaine dealing, armed robbery, attempted murder, and murder…for over a decade”. I don’t feel that statement is accurate. There was really no evidence presented at all that these individuals operated as a “crew” which is why we, the jury, found them not guilty of the conspiracy and racketeering charges. Sure, they knew one another but most people do who grow up in the same community….
As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.
It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.
What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.
So now these individuals who were found guilty of selling drugs face a total of 151 years in prison. At $23,000 per year (Office of US Courts estimate) the total cost to taxpayers is just under $3.5 million. And that is on top of the $1 million the trial cost (my rough estimate). What do we as taxpayers get for that?
I’m sure we all agree that these men sold drugs and did so from a very early age. But they are older now, almost middle-aged. Many people testifying on their behalf noted most had real jobs, families of their own, and had left the drug trade. One had moved to North Carolina with his family and worked in a steel mill two years before he was even arrested. Another is involved in community service to encourage District youth to stop selling drugs and find jobs and he has received widespread recognition for doing so.
At $23,000 a year for each of them, I would think we could find some better way to keep these people from again selling drugs and let them return to their community and become a force for change…. Sincerely, (Juror #6)
Admittedly, it is indulgent of me to quote almost the entirety of the letter, except I cannot fathom that any American reading Juror #6’s compelling words wouldn’t immediately understand all the incredibly important consequences of what it means to allow judges to subvert the verdicts of our juries—a critical component of a criminal legal system our Founders designed in order to protect its people from arbitrary government punishment.
It’s no wonder that once the Supreme Court failed to consider the appeals of the criminal sentences of these men, that Justices Scalia, Thomas, and Ginsburg united to complain urgently that the Supreme Court’s silence regarding the constitutionality of acquitted conduct sentencing, interpreted by lower federal 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….”
Ginsburg and Thomas, however, are not the only current Supreme Court Justices to express concerns about the practice of acquitted conduct sentencing. When Justice Gorsuch sat on the 10th Circuit, he questioned the constitutionality of judicial fact-finding at sentencing, writing that is “questionable” whether the Constitution allows a Court to increase a defendant’s sentence “based on facts the judge finds without the aid of the jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014). And when Justice Kavanaugh sat on the D.C. Circuit, he wrote that “[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.” United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (per curiam) (Kavanaugh, J., concurring in denial of rehearing en banc) (“If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?”); see also United States v. Brown, 892 F.3d 385, 415 (D.C. Cir. 2018) (per curiam) (Kavanaugh, J. dissenting in part) (“[i]f that system seems unsound—and there are good reasons to be concerned about the use of acquitted conduct at sentencing , both as a matter of appearance and as a matter of fairness—congress and the Supreme Court may fix it….”); see also Judge Brett Kavanaugh’s Testimony, Transcript of Public Hearing before the United States Sentencing Commission, July 9, 2009, at 42—43 (“I think acquitted conduct should be barred from the Guidelines calculation. I don’t consider myself a particular softy on sentencing issues, but it really bothers me that acquitted conduct is counted in the Guidelines calculation. I have written about this, and I think I am not alone. I know I am not alone. Other judges have written about it. I know Justice Kennedy has written about it, and other members of the judiciary. It is just very problematic symbolically…. [T]elling a defendant, ‘Yes, you are acquitted but yes, we are going to calculate that sentence to include that acquitted conduct’ just sends the wrong message. It seems to me in too many cases it seems inconsistent with the nature of our system.”).
Unfortunately, the Supreme Court has continued to ignore appeals raising Constitutional challenges to the practice of acquitted conduct sentencing, including as recently as this year.[10] Already, there is another acquitted conduct sentencing appeal seeking the Supreme Court’s review, with facts even weirder than the typical situation that arises when one defendant in the same trial is indicted on some charges, but acquitted on others. In Asaro v. United States, 19-107 (cert. petition pending), the defendant was indicted in 2014 of several serious crimes from the distant past including an alleged robbery in 1978 and an alleged murder in 1969. After a four-week trial in the U.S. District Court for the Eastern District of New York, the jury acquitted Asaro of all charges. Approximately two years after his acquittals, the government again indicted Asaro, this time in connection with property destruction as retribution after a road rage incident. The same prosecutors who had tried Asaro’s prior case handled the case. For reasons that are not apparent from the record, the district judge originally assigned to the case recused herself, and the district court randomly reassigned the case to the same district judge who had presided over Asaro’s earlier trial.
Before sentencing, the government, the probation office, and the defense all agreed that the range called for by the relevant Sentencing Guidelines was 33 to 41 months’ imprisonment. The court nevertheless sentenced Asaro to 96 months—more than double the high end of the range. In so doing, the judge made clear that she was basing the length of Asaro’s sentence on the 1978 robbery and 1969 murder for which Asaro was acquitted in 2015, observing that she was according “particular weight” to those “crimes.” In pronouncing Asaro’s sentence, the judge explained that she had “reviewed” her notes and the transcript from the earlier trial. In other words, the sentencing judge from the defendant’s first trial was now given an opportunity in an unrelated second case a few years later to completely ignore the jury’s unanimous multiple “not guilty” verdicts in the first case and replace them with her own opinion in order to sentence Asaro to a prison sentence more than double what was appropriate for the charge to which he had pled guilty. You can’t make this stuff up. The Due Process Institute recently filed an amicus in support of Asaro’s petition for review by the Supreme Court, which you can read here. We filed the amicus brief because we take every meaningful opportunity to try to abolish this practice, but there is no rational basis for believing that the Court will agree to hear this case when they’ve turned down so many others.
All this nerdy legal case history is important to show that the judicial branch could have fixed this issue long ago but failed to do so. It also illustrates how judges appointed by Republican and Democratic administrations, and judges with widely divergent doctrinal approaches, agree that acquitted conduct sentencing should be abolished. Ever since Watts, the Supreme Court has been the recipient of numerous appeals based on compelling facts involving persons who were acquitted of crimes yet sentenced to prison for them anyway, and still, they have not acted. Judges of all philosophical persuasions from the Supreme Court to the district court level have issued dissent after dissent assailing the validity of acquitted conduct sentencing. And our Supreme Court’s consistent and continued failure to abolish this unconstitutional practice means we must now look to Congress to remedy the problem.
The legislative fix for this problem is relatively easy. Congress need only amend 18 U. S. C. § 3661, which states: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence” to explicitly exempt acquitted conduct.[11] The only challenge in drafting such a bill will be to convince lawmakers on both sides of the aisle why it is imperative that such a change have retroactive application, which would allow for re-sentencing of defendants who have already been harmed by this practice. (Also, it would be great if any legislative remedy could also address the related problems of sentencing based on “uncharged” or “relevant” information.)
Abolishing the use of acquitted conduct at sentencing is a relatively small, but incredibly important, common-sense reform within the wider scope of criminal justice and sentencing reform efforts. Given the unfortunate current scarcity of criminal trials, the issue will simply not be present in the vast majority of criminal adjudications, but where it does play a role, it has undoubtedly had the effect of further undermining the Sixth Amendment’s jury trial guarantee and should be immediately remedied.
The political case for abolishing the use of acquitted conduct at sentencing is strong and appeals to sensibilities across the ideological spectrum. Starting with the historical role of the jury in our Constitutional system and building on our evolving notions regarding the purpose and methods of the criminal legal system, the basis for abolishing the use of acquitted conduct at sentencing has never been more apparent.
Every defendant deserves an individualized judicial determination of appropriate punishment for crimes which he or she has been duly convicted. But judges should not ignore a jury’s findings to punish a person for conduct the government alleged but could not prove beyond a reasonable doubt. The Due Process Institute looks forward to being part of the effort to build bipartisan support for this much-needed Congressional restoration of core procedural due process rights in the criminal legal system.
************
Coming Soon… look for a more in-depth publication from the Due Process Institute on this topic, including information regarding the more complicated issues of reforming the practice of acquitted conduct sentencing at the state level.
We Are All Juror #6 Footnotes:
[1] I pause here to tell you, Dear Reader, the truth. It is not just sentencing on the basis of acquitted conduct that we object to. We also fundamentally believe that the use of uncharged conduct (criminal charges that remain uncharged and therefore unproven) and so-called “relevant” conduct during the sentencing phase are equally concerning. But, for some reason, we don’t have as much bipartisan agreement on those topics yet, so let us focus for now on the more narrow issue of acquitted conduct sentencing. The Due Process Institute’s staff executes the organization’s mission by exerting maximum effort on concrete policy solutions that are achievable as soon as possible in order to start effectively restoring due process rights guaranteed to us all by the Constitution. Sometimes that means short-term compromises for our longer-term goals.
[2] Watts, 519 U.S. at 169-70 (Stevens, J., dissenting) (“The notion that a charge that cannot be sustained by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so proved is repugnant to [our Constitutional] jurisprudence.”).
[3] The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
[4] United States v. Booker, 543 U.S. 220, 240 (2005).
[5] Let’s not beat around the bush: I absolutely do not believe that the Watts decision even correctly decided the Double Jeopardy Clause question and could write a separate blog explaining how the Supreme Court’s jurisprudence since that decision supports my contention. But, for now, what matters is that to the extent you can still count on the Watts decision as valid legal precedent at all, it certainly does not foreclose a 6th Amendment challenge to acquitted conduct sentencing despite how many erroneous citations exist saying otherwise.
[6] 530 U.S. 466 (2000).
[7] Jones v. United States, 135 S. Ct. 8 (2014).
[8] United States v. Jones, 744 F.3d 1362 (2014).
[9] Letter to The Honorable Richard W. Roberts from Juror #6, (May 16, 2008) available at https://web.archive.org/web/20090521024903/https://video1.washingtontimes.com/video/docs/letter.pdf.
[10] Cabrera-Rangel v. United States, No. 18-650 (petition for certiorari was denied on January 14, 2019).
[11] Query whether it might also be prudent for Congress to amend § 6A1.3 of the United States Sentencing Guidelines to ensure the Guidelines and their official commentary reflect the Congress’s goal to abolish acquitted conduct sentencing.