- The Washington Times - Monday, October 14, 2019

Picture three young men caught in the act of selling or distributing small amounts of crack cocaine. Government prosecutors charge them not just with selling, but of being part of a conspiracy to distribute the drug. 

When the case goes to trial, a jury convicts on the distribution charge, but acquits on the weak conspiracy charge government prosecutors concocted. Their lawyers expected the three to receive sentences under federal sentencing guidelines of 27 and 71 months in prison. The judge decides, however, that the jury was wrong. He believes the three are guilty of all charges and sends them off to prison for 20 years, many times the length of the sentence they and their lawyers were anticipating. 

The judge was able to impose the harsher sentence because under current law, a federal judge can ignore an acquittal if he or she decides the jury was wrong and “a preponderance of the evidence” suggests the defendant might actually have been guilty. This is what is known as “acquitted conduct sentencing” and is practiced in the federal system and in many states. The practice throws out the guarantee that a defendant is to be judged by a “jury of one’s peers, makes a mockery of jury trials and the “beyond a reasonable doubt” standard to which the prosecution is supposedly held in criminal cases. 


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This is no apocryphal case; the three young men involved, Joseph Jones, Desmond Thurston and Antwuan Ball are in prison today, sentenced to spend most of their adult lives behind bars by a judge with the power to ignore the jury’s verdict. In another case, a defendant was charged with illegal possession of a firearm and murder in a Michigan court. At trial, the jury found him guilty on the firearms charge, but not guilty of the murder. The judge in the case decided the jury should have convicted him of murder as well and sentenced the man to 20 to 33 years in prison rather than to the 2 to 6 years he would have been required to serve on the firearms charge alone. He appealed. The Michigan Supreme Court took up the case and overturned the judge’s sentence.

The three men in the federal case were not so fortunate. They too appealed all the way to the Supreme Court, which denied certiorari and let the sentence stand. Three justices dissented: Ruth Bader Ginsburg, the late Antonin Scalia, and Clarence Thomas. They were appalled by the practice,  Justice Scalia wrote the dissent in which he declared “This has gone on long enough!” As he put it, the Constitution’s “Sixth Amendment along with the Fifth Amendment’s Due Process Clause requires that each element of a crime be either admitted by the defendant, or proved to the jury beyond a reasonable doubt.” 



Others believe, like Justice Ginsburg, Justice Scalia and Justice Thomas that allowing a judge to sentence a defendant based not on a jury conviction, but on the judge’s belief that he or she could have been convicted under a lower standard of proof is both unfair and unconstitutional. The two newest Supreme Court Justices, Neal Gorsuch and Brett Kavanaugh, found such sentencing troubling as Circuit Court judges and may eventually persuade their colleagues to take up a case in the future, but in the meantime there are men and women sitting in prison cells who would otherwise be free.  

Justice Kavanaugh raised concerns about the practice in at least one decision as a Circuit Court judge and testified before the U.S. Sentencing Commission before his appointment to the Supreme Court that acquitted conduct sentencing  “fails the common sense test, and it brings disrespect to the process, and it weakens confidence in the judicial process.”

Before his retirement, Utah Sen. Orrin Hatch sought as a former chairman of the Senate Judiciary Committee to end the practice legislatively, arguing in 2018 that justice requires that judges respect the findings of juries when imposing sentences in criminal cases. Mr. Hatch is gone, but last month a bipartisan group of his former colleagues introduced the “Prohibiting Punishment of Acquitted Conduct Act of 2019.” Senate co-sponsors include Sens. Booker, Durbin and Leahy in the minority and Republican Sens. Grassley, Lee and Tillis. 

Prosecutors like the current practice because they can pile on charges against a defendant and argue in trying to force a plea bargain that even if the jury acquits, there is a good chance the judge will impose a harsher sentence because of the additional charges. The trapped defendant and defense team have to take such threats seriously as they consider giving up the right to a jury trial in exchange for less time in prison. It makes the prosecutor’s job easier, but is it justice?

There are dozens of criminal justice “reform” proposals out there these days. Some of them make sense and some don’t; this is one that makes so much sense that one hopes the Senate and then the House will take it up, pass it and send it to the White House as soon as possible. 

• David A. Keene is an editor at large for The Washington Times.

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