Did you know that a judge can sentence a defendant as if they were convicted of a more serious crime even if a jury acquitted them?  And more shockingly even if they weren’t charged at all?  At least they can, according to the Supreme Court’s refusal to take up the case.  The practice is frowned upon by many who ascribe to the tenets of American law, including innocent until proven guilty, and the Constitution, but judges are allowed to continue to go unchecked as the Supreme Court refuses to end this controversial practice.

Appellate lawyers in the case Jones v. United States hoped that the court would grant them the right to present their case, but they denied their petition.  Justice Scalia, Justice Thomas, and Justice Ginsberg dissented to the denial.  Dissents to denials of certiorari are rare.  If the justices had one more vote the case would have been accepted.

The case began in Washington, D.C. when Joseph Jones, Desmond Thurston, and Antwuan Ball were charged with running an “open air” drug market.  The jury however acquitted them on the conspiracy charge meaning the men shouldn’t be held liable for the drugs dealt by the organization and convicted them only on the drugs they were found to personally have distributed.

The judge used the Federal Sentencing Guidelines, which is used to ensure that defendants are fairly sentenced uniformly.  The state requested a sentence of 27 to 40 years, arguing that the judge could take into account “relevant conduct” and that the conspiracy charge, though they were found not guilty, is “relevant”.  Normally, their conviction would have called for a 2 1/2 to 6 year sentence.  The judge, ignoring the jury’s verdict, saw “clear evidence of a drug conspiracy.”

The jury foreperson was shocked at the conduct of the state and judge, “it seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves…it appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty.”

The foreperson’s letter has been cited in other cases concerning what is called “uncharged or acquitted conduct”.

The judge sentenced the men to 15 to 19 years as if they had conspired to distribute large amounts of drugs, even though the state did not prove those accusations.  The sentence is nearly 4 times the appropriate sentence for the men’s convictions. The defendants appealed arguing their Sixth Amendment rights were violated because their sentences were unreasonable and based upon charges they were not convicted of.

On appeal, the U.S. Court of Appeals for the D.C. Circuit affirmed the sentence even though it was based in part on acquitted conduct.

“Although we understand why appellants find sentencing based on acquitted conduct unfair,” the court said, “binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.”

The “preponderance of the evidence” standard is not the one normally used in criminal proceedings.  The normal standard is “beyond a reasonable doubt”, which was used by the jury to acquit them and is a far tougher standard than the one used by the judge and appellate court.  So, the defendants appealed to the U.S. Supreme Court.  The government insisted throughout the appeals that “judicial fact-finding does not violate the Sixth Amendment when it results in the imposition of a sentence at or below the statutory maximum for the offense of conviction.”

Justice Scalia authored the dissent and insisted that it was time for the Court to put to an end this practice.  Scalia explained that any fact that increases penalty must be proven.  In addition, an unreasonable sentence is unconstitutional.

“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.”

This case, he added, “is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense…”

Scalia closed his dissent by stating that the Court should have taken the opportunity to “put an end to the unbroken string of cases disregarding the Sixth Amendment.”

READ MORE:  Drug Sentencing Dispute Case | Douglas Berman, Sentencing Expert at the Ohio State University Michael E. Moritz College of Law’s Amicus Brief in Support of the Defendants | The Cato Institute and the Rutherford Institute’s joint Amicus Brief in Support of the Defendants

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