Thursday, April 3, 2008

Not guilty? go to jail based on it anyway..the catch of discretionary sentencing

A blogger on Slate's Convictions blog has this post about the Supreme Court's denial of certiorari in Hurn v. United States. His post is a really good snapshot of an, at least seemingly unfair, reality of our criminal justice system.

Put simply, the problem Hurn deals with is that, in the criminal justice system, many defendants go to trial on more than 1 crime. For example, you might be charged with possessing one drug and another as well (two crimes-because they are each different items.) So what if you get convicted of one of them and acquitted of the other? Well, basically, under the system established by the Supreme Court in United States v. Watts, (a 1997 Supreme Court case) your acquitted offense can be used to increase the sentence you get for a related conviction of a different crime, effectively making you go to jail for BOTH CRIMES ANYWAY. This is provided, of course, that the judge finds the conduct of the acquitted crime was committed beyond a preponderance of the evidence-the standard of proof required for a sentencing enhancement under the US code.

Here is the basic way it works: When you go to trial for crimes-as everyone knows-you must be found guilty beyond a reasonable doubt to be convicted of a crime. In serious prosecutions, you also have a right to have a jury of your peers decide if the evidence is in fact beyond a reasonable doubt.

That's all well and good, but when it comes to the sentencing phase-where the judge takes over to decide what sentence to give-the burden of proof changes. The sentence is supposed to be between a maximum and a minimum set by statue, and adjusted according to certain considerations such as the defendant prior history, and whether the offense was committed in tandem with other offenses. The catch is that these sentencing factors, in many jurisdictions including the federal system, need not be proven-even in just the judge's mind-beyond a reasonable doubt. They must only be found 'more likely than not' i.e to a preponderance of the evidence. If you base a sentencing on that-and need only prove it beyond a preponderance of the evidence-then, reasons the Supreme Court, what difference does it make if the defendant hasn't been proven to have done it beyond a reasonable doubt-its a sentencing factor-and one only needs to prove sentencing factors to a preponderance of the evidence. The fact that the jury didn't find reasonable doubt is irrelevant.

In Hurn, the case the Supreme Court refused to hear a few days ago, if the defendant had been sentenced for the first offense only-he would have been looking only at a few years in prison (as would have been the average sentence for him based on his offense history and other factors). But because the judge used his other, acquitted offense as a 'sentencing enhancement', he was sentenced to an extra 18 years for a crime the jury said could not be proven beyond a reasonable doubt. Wow. Now, because of the precedent in Watts , the 7th circuit has upheld the sentence-and now the Supreme Court has declined to hear the case.

In fact, in some US jurisdictions, this little 'sentencing enhancement' catch gets even worse. In some US circuits-the federal courts are obligated to sentence based on acquitted conduct. A few days ago, in an unpublished opinion of United States v. Ibanga, the federal 4th circuit (the circuit in which I live btw) ruled that a sentence is unreasonable (and must be overturned)-when the sentencing judge decided not to consider conduct that the defendant had been found not guilty of doing into a sentencing enhancement. Thus, not only can acquitted conduct be used against you at sentencing, but in the 4th circuit, it must be used against you or face being overturned by an appellate court as Ibanga's was. This decision noted not only that using aquitted conduct in sentencing isn't a constitutional violation-but that it was therefore mandatory based on 18 USC. 3661, which says that "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." I guess the court could have avoided this result by holding that the statute only means no outside limitation (other than the constitution of course) be placed on the sentencing factors-but that the judge may be fine otherwise to ignore what he wishes...but this might be a little activist construing.

Of course-

There are some constitutional limitations on this 'sentence enhancement':

For example, if the maximum statutory sentence for the crime you got convicted for is 5 years-then you cant get your sentence enhanced beyond this 5 years until you are convicted-beyond a reasonable doubt-of another offense. This is because the Supreme Court found in a 2000 case, Apprendi v. New Jersey, that doing otherwise would be a violation of the 6th amendment's guarantee of the right to a jury trial in serious criminal prosecutions. The logic here is that once the maximum penalty for a certain offense is 'used up' and the highest possible-anything further would have to be punishment for some other offense-and not a sentencing enhancement-thus-it must be that anything beyond the limit for that offense is another offense-and the familiar jury trial beyond a reasonable doubt rule kicks back in.

Furthermore, in states which use a mandatory sentencing scheme-a scheme that gives little or no discretion to trial judges to adjust a sentence and instead require judges to enhance a sentence based on certain findings-the Supreme Court has also ruled such 'enhancements' must be found beyond a reasonable doubt by the jury. This was a 2004 case called Blakeley v Washignton. The reasoning is that if there is no discretion in the sentencing enhancements-then the 'enhancements' are really not enhancements-but indeed, separate statutory categories and thus, separate crimes. Therefore, enhancements that are non jury found in a mandatory scheme are violations of the 6th. Of course, at about the same time as the 2004 Blakeley decision, the federal sentencing guidelines became discretionary in a separate Supreme Court decision called United States v. Booker.

I find two interesting things here,

The first is strictly legal-the Booker and Blakeley decisions seem to put the Watts precedent in a very weird position.

On the one hand, from a strictly precedental perspective, where you look at the holding of cases for precedent, Watts was decided at a time when the federal sentencing guidelines were mandatory, and allowed non jury found conduct to be used in sentencing. And, because the later case of Blakeley prohibits using non jury found conduct in the context of mandatory Guidelines, it seemed that Blakeley overruled Watts. Under this perspective, Watts should be no longer president, and the 7th circuit should be free to decide however it likes in Hurn. (as for the statue cited in Ibanga, if the 7th had held that Watts didn't apply, they would have had to hold that statue unconstitutional in order to justify placing the acquitted conduct limitation on the sentencing court.

But from a perspective of where you look at the underlying reasoning of cases for precedent, Watts would control. Given that the discretionary nature of the guidelines removes any Blakeley problem, the underlying reasoning of Watts-that sentencing enhancements are based on preponderance of the evidence, and that therefore, the fact that certain conduct has been acquitted does not effect that standard and is therefore irrelevant, should now be applied to this, post Blakeley, world. Furthermore, the Watts court 'didn't know' that mandatory guidleines could cause a problem, and didn't consider it an issue, and thus, there is little reason to think the Watts court, sitting today, would have decided differently under this discretionary regime. In fact, from this perspective of the underlying reasoning of Watts, it even makes MORE sense that acquitted conduct be used in sentencing, since we now know that non mandatory guidelines allow for more freedom to use non jury found conduct, not less.

It was my understanding that the reasoning of cases is typically referred to as dicta, and the holdings are usually way more important. But here, the 7th circuit (and clearly now the 4th circuit in Ibanga) seems to have gone for this, underlying reasoning, understanding of the Watts precedent, and hence has affirmed the sentence.

Apparently, the Supreme Court does not think the issue is important enough to discuss right now, although one fairly conservative criminal law expert, Orin Kerr, believes that the Court eventually will overturn Watts decisively.

Orin Kerr also notes that, even if later the Supreme Court decides to give acquitted conduct some special status and not allow it to be used in sentencing, this may just cause prosecutors to only charge one crime-get one conviction-then dump the rest on sentencing enhancements.

There would be a number of restrictions in this strategy however.

a) Prosecutors still need to get at least 1 underlying conviction in order to get to sentencing at all. It would lessen the chances of an underlying conviction to begin with if you use this strategy-(you got more chances getting a conviction with 10 charges than with 1 charge).
b) Prosecutors would still not be able to go over the statutory maximum for the convicted offense-if they wanted to, they would need another conviction under Apprendi, thus, they would have still a big incentive to get more than one conviction.

so taking the acquitted conduct outside the sentencing world would possibly create a small incentive for this perverse prosecutorial move-but it might not come to fruition given the realties of prosecution and Apprendi.

The other interesting thing is that, after Apprendi, Blakeley and Booker, (and later United States v. Gall and United States v. Kimbrough-two cases which made it clear that once sentences were decided, whether in or outside the guidelines range, they were to be reviewed only for abuse of discretion-a very hard thing to show-including when judges took into consideration then 100:1 crack/coke discrepancy) it seemed that things were getting a little easier for defendants-the guidelines were no longer mandatory, and it seemed that very high federal sentences would finally come down.

But as this denial of certiorari in Hurn, and certainly, the 4th circuit decision in Ibanga show, discretionary sentencing is not always a blessing to defendants.

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