12 March 2006

Punishment For Acquitted Conduct

It isn't news. But, it is so profoundly wrong that it bears repeating.

As backgrond, the U.S. Sentencing Guidelines have been shifted from binding to advisory status based upon the determination that it was not proper for a judge to increase a maximum sentence based on facts not found by a jury or admitted in a guilty plea. But, those guidelines remain the baseline for sentences in the federal system, and particularly in the 8th Circuit Court of Appeals, it is well established that guideline sentences are presumptively reasonable, and the guidelines continue to be the major determinant of sentences in most cases in the federal system.

Despite the basis for abandoning the U.S. Sentencing Guidelines, it remains legal for a judge to enhance someone's sentence based upon a crime that jury acquitted someone of at trial.

Thus, even if a jury finds you not guilty, for example of corruption charges, but you are found guilty of tax evasion, as a jury did in the case of Atlanta's Mayor, the judge can enter a sentence that reflects the corruption charges as well, so long as it is less than the maximum sentence for tax evasion, even if the sentence almost certainly would have been overturned on appeal without a judge's finding, contrary to the jury, that the Mayor was guilty of corruption. (To be clear, this hasn't happened yet in this case, but it could, and it has often happened in other cases in the federal system and has been affirmed on appeal.)

The U.S. Supreme Court needs to take an acquitted conduct case and reverse its prior ruling that this is acceptable. No one should be sentenced based on offense conduct unless one is found guilty by at trial or assents to in a guilty plea. If judges can, and right now they can, sentence someone based on acquitted conduct, why bother having juries at all?

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