YahooNews points me to an AP story from earlier in the week: “Supreme Court asked to bar punishment for acquitted conduct“
A jury convicted Dayonta McClinton of robbing a CVS pharmacy but acquitted him of murder. A judge gave McClinton an extra 13 years in prison for the killing anyway.
In courtrooms across America, defendants get additional prison time for crimes that juries found they didn’t commit.
The Supreme Court is being asked, again, to put an end to the practice. It’s possible that the newest member of the court and a former federal public defender, Justice Ketanji Brown Jackson, could hold a pivotal vote.
McClinton’s case and three others just like it are scheduled to be discussed when the justices next meet in private on Jan. 6.
Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on a Supreme Court decision from the late 1990s. And the justices have turned down numerous appeals asking them to declare that the Constitution forbids it.
The closest the court came to taking up the issue was in 2014, when Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg provided three of the four votes necessary to hear an appeal.
“This has gone on long enough,” Scalia wrote in dissent from the court’s decision to reject an appeal from defendants who received longer prison terms for conspiring to distribute cocaine after jurors acquitted them of conspiracy charges.
Scalia and Ginsburg have since died, and Thomas remains on the court. But two other justices, Neil Gorsuch and Brett Kavanaugh, have voiced concerns while serving as appeals court judges. “Allowing 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,” Kavanaugh wrote in 2015.
Jackson, who also previously served on the U.S. Sentencing Commission, could provide a fourth vote to take up the issue, said Douglas Berman, an expert on sentencing at the Ohio State University law school.
“She is someone who we’d have good reason to believe would be troubled by the continued use of acquitted conduct,” said Berman, who filed a brief calling on the court to take up McClinton’s case.
Jackson replaced Justice Stephen Breyer, who generally favored giving judges discretion in imposing prison terms. Reining in the use of acquitted conduct in sentencing would restrict judicial discretion.
Despite the increasing polarization on the Supreme Court along party lines, it’s interesting that Scalia, Thomas, and Ginsburg were in alignment on this in the minority. At first blush, punishing someone for a crime he’s been acquitted of is simply outrageous. Even Scalia and Thomas see that.
The reality is more complicated.
McClinton, then 17, was part of an armed group that robbed a CVS pharmacy in Indianapolis in 2015 in search of prescription medicines, including opioids. The take was meager, about $68 worth of drugs, McClinton’s lawyers said in court papers. After one member of the group refused to share the proceeds, he was fatally shot in the back of the head at close range.
The reputed leader and other members of the group testified against McClinton at trial, as part of their bid for reduced prison terms, McClinton’s lawyers wrote.
Even with the testimony, jurors acquitted McClinton of the most serious charges against him. He should have faced six years in prison, at most.
Instead, the trial judge gave McClinton 19 years, finding that it was more likely than not that McClinton was responsible for the killing. The legal standard in a jury trial is higher, proof beyond a reasonable doubt.
Upholding McClinton’s prison term, Judge Ilana Rovner wrote for a unanimous three-judge panel of the Chicago-based 7th U.S. Circuit Court of Appeals that lower-court judges are bound by a 1997 Supreme Court ruling that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”
But Rovner noted that a growing number of federal judges “have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations.”
McClinton committed an armed robbery—the fact that they didn’t come away with a lot is entirely irrelevant—and subsequently likely killed a co-perpetrator in that crime. His co-conspirators testified to that fact. Surely, that’s a fact that should be taken into account in sentencing?
The 1997 case in question, United States v. Watts (decided along with a companion case, United States v. Putra) is summarized thusly:
Respondent Watts was convicted of possessing cocaine base with intent to distribute, but acquitted of using a firearm in relation to a drug offense. Despite this, the District Court found by a preponderance of the evidence that Watts possessed guns in connection with the drug offense, and therefore added two points to his base offense level when calculating his sentence under the United States Sentencing Guidelines. In a separate case, respondent Putra was convicted of aiding and abetting possession with intent to distribute cocaine on May 8, 1992, but acquitted of aiding and abetting such a transaction on May 9. Finding by a preponderance of the evidence that she had been involved in the May 9 transaction, the District Court calculated her Guidelines’ base offense level by aggregating the amounts of both sales. In each of these cases, the Ninth Circuit held that the sentencing courts could not consider respondents’ conduct underlying the charges of which they had been acquitted.
The majority held:
A jury’s verdict of acquittal does not prevent a sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. The Ninth Circuit’s contrary holdings conflict with the clear implications of 18 U. S. C. § 3661, the Guidelines, and this Court’s double jeopardy decisions, particularly Witte v. United States, 515 U. S. 389. Section 3661 codifies the longstanding principle that sentencing courts have broad discretion to consider various kinds of information, including facts related to charges of which the defendant has been acquitted. Further, this Court has held that consideration of information about a defendant’s character and conduct at sentencing does not result in punishment for any offense other than the crime of conviction. Id., at 401. In addition, acquittal merely proves, not that the defendant is innocent, but the existence of a reasonable doubt as to his guilt. Thus, an acquittal does not preclude the Government from relitigating an issue in a subsequent action governed by a lower standard of proof. Dowling v. United States, 493 U. S. 342, 349. The acquittals below shed no light on whether a preponderance of the evidence either established Putra’s participation in the May 9 sale or Watts’ use of a firearm in connection with a drug offense.
The opinion was issued Per Curiam, rather than signed by its author, because it was relatively short and essentially just reiterated established opinion.
Scanning the opinion, much of it is based on statutory interpretation of the sentencing guidelines passed by Congress but also touches on Constitutional interpretation:
The Court of Appeals’ position to the contrary not only conflicts with the implications of the Guidelines, but it also seems to be based on erroneous views of our double jeopardy jurisprudence. The Court of Appeals asserted that, when a sentencing court considers facts underlying a charge on which the jury returned a verdict of not guilty, the defendant “‘suffer[s] punishment for a criminal charge for which he or she was acquitted.’ ” Watts, 67 F. 3d, at 797 (quoting Brady, 928 F. 2d, at 851). As we explained in Witte, however, sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction. 515 U. S., at 402-403. In Witte, we held that a sentencing court could, consistent with the Double Jeopardy Clause, consider uncharged cocaine importation in imposing a sentence on marijuana charges that was within the statutory range, without precluding the defendant’s subsequent prosecution for the cocaine offense. We concluded that “consideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one of which the defendant was convicted.” Id., at 401. Rather, the defendant is “punished only for the fact that the present offense was carried out in a manner that warrants increased punishment …. ” Id., at 403; see also Nichols, 511 U. S., at 747.
The Court of Appeals likewise misunderstood the preclusive effect of an acquittal, when it asserted that a jury” ‘reject[sJ”’ some facts when it returns a general verdict of not guilty. Putra, 78 F. 3d, at 1389 (quoting Brady, supra, at 851). The Court of Appeals failed to appreciate the significance of the different standards of proof that govern at trial and sentencing. We have explained that “acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” United States v. One Assortment of 89 Firearms, 465 U. S. 354, 361 (1984). As then-Chief Judge Wallace pointed out in his dissent in Putra, it is impossible to know exactly why a jury found a defendant not guilty on a certain charge.
I’m queasy about this but it makes good sense. The whole point of having a judge in charge of sentencing is that they’re supposed to apply, well, judgment. They really have to trusted to take the totality of circumstances into consideration.
That a jury rules that there is reasonable doubt as to whether a defendant committed a murder should absolutely mean they can’t be punished for the murder. But that hasn’t historically meant the judge can’t take into account that it’s more likely than not he actually committed the murder into sentencing. That’s no more double jeopardy than a killer being acquitted in a criminal trial and then found liable in a civil trial based on the same circumstances.*
It’s noteworthy that Scalia and Beyer concurred in the judgment, merely putting their two cents in on the powers of the Sentencing Commission under law.
Breyer:
I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.
In telling judges in ordinary cases to consider “all acts and omissions … that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § lB1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.
This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.
Scalia disagrees:
I do not agree with the assertion in JUSTICE BREYER’S concurrence that there is no obstacle to the Sentencing Commission’s reversing today’s outcome by mandating disregard of the information we today hold it proper to consider. Title 28 U. S. C. § 994(b)(1) requires the Guidelines to be “consistent with all pertinent provisions of title 18, United States Code.” In turn, 18 U. S. C. § 3661 provides that “[n]o 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.” In my view, neither the Commission nor the courts have authority to decree that information which would otherwise justify enhancement of sentence or upward departure from the Guidelines may not be considered for that purpose (or may be considered only after passing some higher standard of probative worth than the Constitution and laws require) if it pertains to acquitted conduct. If the Commission believes that the rules of evidence and proof established by the Constitution and laws are inadequate, it may of course recommend changes to the Congress, cf. 28 U. S. C. § 994(w).
Justices Stevens and Kennedy, both of whom have retired (replaced by Kagan and Kavanaugh, respectively), are the lone dissenters.
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*I have different problems with that, owing to the financial and other burdens imposed and the concomitant potential for abuse. But that’s a digression from the matter at hand.
