Antonin Scalia, Sentencing Law, Supreme Court, White-Collar Crime

The Supreme Court Lets You Go To Prison (Longer) For What You Weren't Convicted Of

This week, the Supreme Court had a chance to fix it. It didn't.

By  
on

In a criminal case in federal court, if you are acquitted at trial of almost all of the charges against you, you can still be sentenced as though you were convicted of all of the charges against you, when the judge disagrees with the jury’s decision. That is off-the-rails crazy.

The point of a trial, of course, is to figure out if someone is going to go to prison for doing something. The jury’s decision about what a person did should be what controls what crime the person is sentenced for committing. Yet that’s not what judges do.

To be sure, there are some cases where judges use sentencing decisions to express concerns, perhaps, about the jury’s verdict. Such as when Barry Bonds was given a light sentence for committing something that was probably not a crime. Or when a woman in Indiana was convicted in a highly questionable prosecution after being inappropriately skewered with unfair questions on cross.

But that’s a judge using her power to set a sentence while respecting the decision of a jury. She accepts what the jury decided, then takes that into account — in addition to other things — when imposing sentence.

When a judge gives someone more time in prison based on something that a jury already decided the person wasn’t guilty of, it’s very different. That’s an insult to the jury and is really hard to square with how the law of federal sentencing has been developing lately.

This week, the Supreme Court had a chance to fix that. It didn’t.

Sponsored

In Jones v. United States, three men were sentenced for a conspiracy to distribute drugs that they were acquitted of. The jury thought that there wasn’t enough guilt to find them guilty of the conspiracy, but there was enough guilt to find them each separately guilty of distribution. The district court disagreed and sentenced them all as though they’d been found guilty of the conspiracy. That was a difference of more than ten years in prison.

Instead of granting cert in Jones, the Court declined to take the case and Justice Scalia wrote a dissent, joined by Ginsburg and Thomas.

Why is this such a big deal?

Because sentencing in federal court — for white-collar cases and drug cases alike — is, in this regard, a mess. If you’re convicted of one part of a fraud case, but acquitted of a larger fraud, you can be sentenced for the whole thing if the judge decides to ignore the jury and assess sentencing guidelines as if the jury had never acquitted you.

Even though adhering to the sentencing guidelines is not mandatory for judges, they’re still an incredibly important part of a sentencing hearing. A judge’s findings that drive the sentencing guidelines drive, in a very very real sense, what sentence a person will get. And the guidelines also drive the appellate review of the sentence.

Sponsored

Yet there is a whole line of cases that say the things that really strongly matter to what sentence you’ll get have to be found by a jury or admitted by the person being sentenced (aside from his criminal history).

The Supreme Court recently in Peugh made it clear that the guidelines have a really important role in federal sentencing — a role that’s of constitutional significance.

A district court’s role in determining the guidelines without a jury finding is itself a little odd, but, well, that’s where we are since Booker when the Court held the guidelines aren’t mandatory.

But the issue in Jones — whether a district court can straight up ignore a jury verdict — is a cat of a different stripe. I mean, really, what’s the point of having a jury if the district court can just ignore what the jury found?

To make things worse, jacking up someone’s sentence for a crime a jury said they didn’t commit is kosher in “nearly every federal appellate court” to consider the issue.

The law in this area, left intact in Jones, doesn’t comport with what we think juries should be doing, and it doesn’t square with where the law is as the Supreme Court has articulated it. As Justice Scalia writes:

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal. If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.” Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, and “must be found by a jury, not a judge,” We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows that 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.

Internal citations omitted.

Doug Berman at Sentencing Law and Policy has a theory for why the Court didn’t grant cert. It’s dark, but who knows.

Regardless, in federal criminal cases, winning at trial is only something when it’s everything.

Topics

, , , , ,