It’s one of those things that people never expected and can’t imagine how it could be possible, constitutional. It’s not just that it offends our sense of fairness, but it offends the legitimacy of the process. Why have a trial if the outcome of not guilty on one offense doesn’t mean that the defendant beat the rap. How could there be such a thing as “acquitted conduct sentencing”?
If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt. That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.
Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence. Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt? There is no logical reason why it should, yet the practice remains controversial.
There are some qualifications. The defendant must be convicted of some crime, although not the crime being used to enhance the sentence. The sentence must still fall within the range of the crime for which he was convicted. The judge must find, by a preponderance of the evidence, the basis upon which sentencing facts are found, that the defendant engaged in the conduct for which he was acquitted. Nonetheless, the process by which we determine guilt (and for which the alternative remains the presumption of innocence, which has not been rebutted by conviction) is rendered a nullity at the point where it matters most.
The United States Sentencing Commission, with bipartisan support, is ready to put an end to this blight on the legitimacy of our legal process and the judiciary. Then in came the position of the Department of Justice under stolen-supreme-court justice cum Attorney General Merrick Garland of the Joe Biden administration. The DoJ stands opposed.
In essence, the DOJ is opposing the reform proposal because it is a significant departure from longstanding practice and precedent, according to its testimony. A spokesperson also highlighted that the issue only arises in split verdicts – when someone is convicted on some counts and acquitted on others.
At its core, the administration’s central argument is just an appeal to tradition – a tradition that virtually the entire legal community recognizes as unconstitutional, or fundamentally unjust.
The basis for its objections, set forth in a letter submitted for a hearing by the commission, is substantially more sophisticated than a mere appeal to tradition.
As an initial matter, if adopted, the proposed definition of acquitted conduct would create challenges in parsing the acts and omissions that can and cannot be considered by a sentencing court. Defining acquitted conduct as conduct “underlying a charge of which the defendant has been acquitted” will prove difficult to administer, especially for complex cases involving overlapping charges, split or inconsistent verdicts, or acquittals based on technical elements unrelated to a defendant’s innocence.13 The Department is particularly concerned about cases in which the charges are linked together, as in cases involving conspiracy, false statements, civil rights, sexual abuse, and firearms charges.
More specifically, the Commission’s proposal fails to account for an acquittal unrelated to the defendant’s innocence as to the conduct at issue—for example, an acquittal based on failure of proof at trial on a technical element of the offense, including, but not limited to, venue, a jurisdictional element, or the conduct occurring outside the statute of limitations. These circumstances often arise in civil rights cases, sexual misconduct cases, child exploitation cases, and cases involving particularly vulnerable victims who may not report a crime until long after the offense was committed. Under the current Guidelines, courts may treat the substantive conduct underlying a charge for which the defendant was acquitted as relevant conduct as to other offenses of conviction, so long as the court believes that evidence established by a preponderance of the evidence. The court thus has discretion to consider conduct underlying an acquittal that rested on technical grounds, while always retaining authority to disregard the conduct if the evidence is insufficient or if the conduct was insufficiently related to the offense of conviction. The Commission’s proposal would strip courts of that discretion, categorically prohibiting courts from considering this conduct for purposes of determining the Guidelines range.
It’s not that this argument is false or wrong, but it’s the tail wagging the dog. There will always be outlier cases that manage to avoid being swept up in the ordinary course of the system’s grinding wheels, such as the case where there is little doubt that a defendant engaged in the wrongful conduct but some “technical” rule precluded conviction, but that happens with extreme rarity and hardly justifies rejection of this abhorrent practice in the vast majority of cases.
The issue is whether the sentencing process should prioritize the verdict of acquittal by a jury or the outside possibility that someone acquitted of one offense but convicted of another might get away with too light a sentence. Is it possible that the rare defendant might not be punished harshly enough to sate the blood lust of some? Of course. But of the many ills of our legal system, the concern that a defendant will be sentenced for something he didn’t do is far more fundamental to our jurisprudence. We’ll just have to risk the possibility that someone didn’t get life plus double cancer when some believe he deserved it.
What makes this shocking, though, isn’t so much that the DoJ opposes it, or even that it has bipartisan support and still the DoJ opposes it. It’s that this DoJ, the one led by progressive voices filled with self-proclaimed empathy for some, can’t manage to dig any up now, when it’s needed, when we finally have the opportunity to actually rid our system of this disgrace. Just as the Obama administration ran out of steam for criminal law reform after it was spent on the Affordable Care Act, so too has the Biden administration spent its “equity” elsewhere, with none remaining for criminal defendants.