New test of punishment beyond the verdict

For the past fourteen years, the Supreme Court has spent a good deal of time and energy sorting out the constitutional roles of judges and juries in the system of punishment for federal crimes. The process has made even more puzzling an already complex array of federal sentencing guidelines.

The Court is now being asked to reopen this challenging controversy at a very basic level: is it unconstitutional for a judge to impose a sentence that goes beyond the facts that the jury found in a partial verdict of guilty, so long as the judge stays within the guideline ceilings? Does that undermine the jury’s role under the Sixth Amendment?

That issue arises in a gang-related case involving what federal prosecutors called an “open air” market for crack cocaine on the streets of a Washington, D.C., neighborhood.

Although a jury was persuaded that each of three men in the case had distributed small amounts of crack and found them guilty on that point, it refused to convict them on more serious charges, including a wide-ranging trafficking conspiracy count, involving hundreds of grams of crack. Still, the judge quadrupled their sentences, by finding that the conspiracy did exist as a fact.

The three men’s new petition to the Supreme Court in the case of Jones v. United States is, in fact, the latest in a string of appeals attempting to get the Court to clarify when “acquitted conduct” — that is, evidence behind counts that the jury had rejected — is a valid basis for enhancing a sentence on the jury’s more limited verdict.

The Justice Department has resisted those appeals and it chose not even to respond to the Jones petition. However, the Court in late May asked for a response. The government has now suggested that the Court pass up this one, too.

There is no conflict in the lower courts, the federal government argued. And, in any event, it contended that the Supreme Court settled the issue against this kind of challenge in United States v. Watts – although that decision was issued in 1997, before the Court began strongly reaffirming the primary role of the jury in finding the facts that will support a criminal sentence.

The three Washington men argued that more recent decisions of the Court are more favorable to their challenge, and they have drawn the support of briefs filed by an Ohio State law professor who specializes in sentencing issues, and by two legal advocacy groups.

All of the briefs argued that use of evidence underlying counts on which a jury did not convict as a basis for enhancing a sentence will lead prosecutors to file multiple charges, including more serious ones on which they may not expect convictions, in an attempt to get a guilty verdict on a fairly minor crime and then persuade the judge to impose a sweeping sentence based on “acquitted conduct.”

In this case, the jury convicted the three men of selling between two and eleven grams of crack cocaine — a verdict that would normally have led to sentences ranging between twenty-seven and seventy-one months in prison, under federal guidelines.

But the judge found by a “preponderance of the evidence” that there was, in fact, a broad drug-dealing conspiracy to sell a lot more crack cocaine, and he therefore sentenced one of the men to 180 months, another to 194 months, and a third to 225 months.

Those sentences, the Jones petition asserted, “drastically exceeded the norm” for the kinds of crimes on which the jury convicted the three men. In fact, “no court of which we are aware” has imposed such sentences for convictions based on selling “modest amounts” of crack cocaine, the new filing said.

All of the briefs filed on the defendants’ side of the case argued that the constitutional difficulty with their sentences stems from the Supreme Court’s conclusion that the standard for judging whether a sentence imposed by a trial judge under the guidelines is only what is ”reasonable.”

That standard, the defendants’ lawyers argued, “invites constitutional mischief” of the kind they argued occurred in this case, with the judge essentially ruling that the men were guilty of a different crime with different elements from the one on which the jury had found guilt.

The advocacy groups’ brief — filed by the Cato Institute and the Rutherford Institute — argued more broadly that the Court should dismantle the entire approach it had adopted when it made the federal sentencing guidelines advisory instead of mandatory.

That approach, it argued, results in scenarios such as this: ”A person, who a judge believes committed bank robbery, but was only found by a jury to have committed illegal gun possession, will be imprisoned by the judge’s determination, and not the jury’s.”

The jury verdict in such a scenario is not the central event of a trial, but merely is ”a prologue to sentencing,” and thus “sentencing becomes the real trial, with the judge being given carte blanche to engage as fact-finder,” that brief argued.

This case is now set to be considered by the Justices at their next Conference, on September 29, according to the Court’s electronic docket.