Seventh Circuit reverses sentence based on insufficient evidence of “precrime” of attempted murder

The Seventh Circuit today in US v. England, No. 08-2440 (7th Cir. Feb. 13, 2009) (available here), suggests that we do not (yet) live in a Minority Report world in which special government agents can punish persons for crime they are predicted to commit.  Specifically, the Seventh Circuit in England finds error in a district court’s decision to increase a defendant’s sentence significantly based on the “court’s belief that the defendant would have committed the crime” of attempted murder if given the opportunity to be free on bond.  England, slip op. at 13. (emphasis in original).

The England opinion is fascinating for many reasons, and here is one particularly interesting passage discussing a sentencing judge’s discretion (with some cites omitted):

We grant sentencing courts discretion to draw conclusions about the testimony given and evidence introduced at sentencing. Yet, this discretion is neither boundless nor is the information upon which a sentencing court may rely beyond due process limitations. To the contrary, we recognize that due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations. United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007)see also United States v. Berry, 2009 WL 22890, at *8 (3d Cir. Jan. 6, 2009) (“A defendant cannot be deprived of liberty based upon mere speculation.”). Indeed, the Supreme Court has long recognized that “[n]o individual or body of men has a discretionary or arbitrary power to commit any person to prison.” Hurtado v. California, 110 U.S. 516, 537 (1884). If the district court relied on unreliable or inaccurate information in making its sentencing decision, we return the case to the district court for a new sentencing hearing.

Interestingly (and somewhat disturbingly), though the Seventh Circuit reverses the sentence in this appeal, it hints that the real problem was just that the district court did not have enough evidentiary support for its conclusion that the defendant would have committed attempted murder.  Consider how the England opinion ends:

[W]e respectfully — and with a degree of reluctance considering the district court’s diligence in attempting to arrive at the correct disposition in this matter — vacate England’s sentence and remand to the district court for resentencing….

In arriving at our decision, we want to underscore that we do not pass judgment on the reasonableness of the 210-month sentence imposed by the district court. As noted above, the able and experienced district court judge conducted a thorough and meaningful § 3553(a) analysis and the sentence that he imposed very well may be reasonable. The district court need not repeat this analysis at resentencing; it can adopt the § 3553(a) findings arrived at during the June 2, 2008 hearing. We only require that the district court make its sentencing determination without reliance on a finding that England would have attempted murder if out on bond unless further evidence is adduced which would justify such a conclusion.

So, by my reading, if the prosecution can come forward with more evidence to support the claim that the defendant here would have committed attempted murder, the Seventh Circuit would be fine with the sentence imposed.  Perhaps some of those weird psychic precogs can come testify at the next sentencing hearing against the defendant to make sure he does not get away with his “precrime” of attempted murder.