The puzzling persistence of acquitted conduct in federal sentencing, and what can be done about it.

• Author: Johnson, Barry L.

1. INTRODUCTION

   On November 28, 2007, a jury convicted Joseph Jones, Desmond Thurston, and Antuwan Bell of distributing a relatively small amount of crack cocaine. The defendants were acquitted of a number of more serious charges, including conspiracy to distribute a much larger quantity of crack. (1) At the defendants' respective sentencing hearings, the sentencing judge found that--despite the jury's verdict of acquittal on the conspiracy charge--each of the defendants' criminal activities had been part of a conspiracy to distribute large quantities of crack cocaine in the Congress Park area of Southeast Washington, D.C. (2) Based in significant part on these findings, each defendant was given a much more severe sentence than their United States Sentencing Guidelines (Guidelines) ranges would otherwise have suggested as appropriate. (3)

   Can a criminal defendant's sentence really be enhanced on the basis of conduct underlying criminal charges of which he or she has been acquitted by a jury? Yes, it can. In United States v. Watts, (4) the United States Supreme Court held that in applying the Guidelines, a sentencing judge is permitted to enhance a criminal offender's sentence on the basis of conduct, determined by the sentencing judge to be relevant to sentencing, underlying charges of which the offender had been acquitted by a jury. (5) The Court viewed this reliance on acquitted conduct as authorized by applicable statutory provisions, by the Guidelines, and as consistent with relevant constitutional limitations. (6) While permitting sentence enhancement on the basis of acquitted conduct has long struck many observers as, at best, peculiar, (7) the Court's decision in Watts merely reaffirmed sentencing practices that prevailed widely, both before and after the adoption of the Guidelines. (8)

   However, only three years after Watts in Apprendi v. New Jersey, (9) the Court decided the first in a series of cases that would dramatically alter the constitutional regime governing sentencing practices. The Apprendi Court held that, in certain circumstances, the use of judicially determined facts to enhance an offender's sentence is impermissible under the Sixth Amendment. (10) Five years later, in United States v. Booker, (11) the Court concluded that the judicial fact-finding required by the then-existing federal guidelines scheme could not be squared with the principles of Apprendi and declared the Guidelines unconstitutional. (12) The Booker Court, however, declared that the proper remedy for this constitutional flaw was to treat the Guidelines as advisory rather than binding, creating the current system of advisory guidelines. (13)

   One might think, at first glance, that the recognition of a Sixth Amendment right to have a jury rather than a judge determine relevant sentencing facts would put an end to the use of acquitted conduct. One would be wrong, however, at least so far. The federal appellate courts have been unanimous in holding that reliance on acquitted conduct to enhance an offender's sentence is still permissible under the now-advisory Guidelines. (14) While recent academic commentary has largely taken the opposing view on the constitutionality of acquitted conduct, (15) there is currently little reason to believe that the courts will be persuaded to change their views on this issue any time soon. (16)

   This Article examines the problem of acquitted conduct in modern federal sentencing and proceeds in three parts. Part II describes how the use of acquitted conduct has been legally justified in federal sentencing under each of the three distinct modern federal sentencing regimes: under the discretionary sentencing regime of the pre-Guidelines era, under the era of binding Guidelines, and under the current regime of advisory Guidelines. (17) Part III undertakes a policy assessment of acquitted conduct, describing and evaluating the arguments for and against its use. This part concludes that, on balance, use of acquitted conduct is a poor sentencing practice, inconsistent with a number of important sentencing policies and process interests. (18) Part IV examines the various ways acquitted conduct might be eradicated from the federal sentencing landscape, including constitutional reforms imposed by courts, modifications to the Guidelines promulgated by the United States Sentencing Commission (the Commission), and legislative reforms enacted by Congress. Part IV also briefly examines the possibility that prosecutors or sentencing judges could exercise discretion to refrain from reliance on acquitted conduct. (19) Finally, Part IV examines the advantages of each possible route to reform, as well as their problems and limitations. (20)

2. THE USE OF ACQUITTED CONDUCT IN THE THREE ERAS OF MODERN FEDERAL SENTENCING

   1. Acquitted Conduct in the Pre-Guidelines Era (1949-1987) (21)

      1. Rehabilitation, Discretion, and Judicial Access to "the Fullest Possible Information" Concerning the Offender and His Offense

         Throughout much of the Twentieth Century, sentencing judges in both state and federal courts possessed virtually unlimited discretion to impose any sentence from within broad statutory ranges provided for in various criminal offenses. (22) Sentencing judges typically were not required to specify on the record the factors that influenced their sentencing choices. Nor were judges constrained in terms of the type of information upon which they could rely when imposing a sentence. (23) Judicial sentencing discretion was not subject to meaningful appellate review and similarly broad discretion was granted to parole officials in determining the release dates of offenders. (24)

         The broad discretion granted to sentencing judges and other actors in the criminal justice system was a function of the prevailing penal philosophy dominant at the time, which emphasized the rehabilitation of offenders as the primary purpose of criminal sentencing. (25) This focus on offender rehabilitation was thought to require broad flexibility for judges and parole officials to craft individualized sentences to maximize the rehabilitative progress of offenders. (26) In turn, the individual rehabilitative needs of particular offenders was thought to require judges to consider a wide array of facts about the offense and the offender, including facts that would be inadmissible at trial. (27)

         In its 1949 decision in Williams v. New York, (28) the United States Supreme Court fervently embraced this rehabilitative ideal and the resulting need for broad judicial sentencing discretion. Writing for the Court, Justice Hugo Black explained that the "prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime" required judges to exercise broad discretion, and in turn required judges to access a wide array of information that might be helpful in crafting a sentence. (29) He elaborated:

         [A judge's] task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to trial. (30) Applying these principles, the Williams Court affirmed the trial judge's imposition of a death sentence after the defendant's conviction for first-degree murder, despite a jury recommendation of life imprisonment. (31) The death sentence the judge imposed was based, in part, on inculpatory information inadmissible at trial but supplied to the judge in the presentence report. (32) The Court rejected Williams's claim that the sentencing judge's reliance on this information violated either principles of due process, or Williams's constitutional right to confront witnesses against him. (33) The Court concluded that "[t]he considerations we have set out admonish us against treating the due-process clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence." (34)

         Subsequent cases such as United States v. Tucker (35) and United States v. Grayson (36) cited Williams approvingly, reiterating the view that the need for judicial discretion in crafting sentences demanded freedom from evidentiary constraints applicable at trial. (37) The sentencing judge's role was, in effect, the role of sentencing expert, using whatever information about the offender or his offense that the judge deemed appropriate to fashion the appropriate individualized sentence to promote rehabilitation.

      2. Judicial Discretion, Rehabilitation, and Use of Acquitted Conduct

         Though Williams involved the use of unadjudicated conduct, the logic of the Court's analysis extended to the use of acquitted conduct as well. (38) In a leading pre-Guidelines case on acquitted conduct, United States v. Sweig, (39) the U.S. Court of Appeals for the Second Circuit affirmed a criminal sentence imposed, in part, on the basis of evidence of acts of official corruption that underlay charges of which a jury found Sweig to be not guilty. (40) Sweig challenged his sentence, arguing it was impermissible to enhance his sentence based on crimes of which the jury had acquitted him. The Second Circuit rejected Sweig's argument, emphasizing the broad discretion that sentencing judges possess. (41) The court reasoned that the sentencing judge's reliance on acquitted conduct was indistinguishable from reliance on the type of unadjudicated conduct the United States Supreme Court approved in Williams. (42)

         Other courts addressing...