A thoughtful defense of acquitted-conduct sentencing that ultimately betrays our constitutional design
Over at his substack “Sidebars,” Randall Eliason his this lengthy new entry titled “The Case for Using ‘Acquitted Conduct’ at Sentencing.” I highly recommend anyone interested in constitutional or policy debates regarding acquitted-conduct sentencing to jump over to this entry and to take the time to review his full argument. I will not seek to summarize or take issue with all of his points here, but I will quote parts of the end of his entry that strike me as the key element — and key problem — with his argument:
My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges. There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t. If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it. Judges are not mere passive conduits through which prosecutors work their will.
Sentencing judges have seen the same evidence as the jury. They are trained lawyers, far more experienced at evaluating evidence than jurors are. They may know things about the case and about the defendant that the jury, for various legal reasons, was not allowed to hear. They are in a strong position to make their own evaluation of the evidence and appropriate findings about the defendant’s conduct.
This is what we want judges to do. Booker restored much of the essence of judging: the ability to evaluate all the facts and circumstances and fashion the appropriate sentence for a particular defendant, not unduly bound by rigid rules, exercising both justice and mercy. Trusting the judge to do that includes trusting her to decide what facts are relevant to the defendant’s sentence, even when a jury may have rejected some charges….
Creating rules to ban the use of acquitted conduct at sentencing would improperly tie the hands of all judges in all such cases. It would require judges to ignore facts right in front of them that are directly relevant to determining the appropriate sentence. It would result in greater sentencing disparity and in sentences that do not truly reflect the totality of a defendant’s conduct.
In the movement for sentencing fairness and equity, that would be a step backward.
I concur that banning “the use of acquitted conduct at sentencing would … tie the hands of all judges in all such cases.” But that is not, as I see it, improper; it reflects the democratic design of our Constitution. Eliason calls for trusting judges (as “trained lawyers”) using a civil-law standard to impose (often severe) punishment after a unanimous jury has rejected prosecutors’ allegations. But, as Justice Scalia rightly stressed for the Supreme Court in his opinion in Blakely v. Washington, our Constitution codified the “Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.”
In my view, technical arguments made by Eliason and others in support of acquitted-conduct sentencing ultimately fail to respect the constitutional significance of the voice of the people in our democracy in the form of a unanimous jury acquittal. (And, critically, this vision of the significance of a jury verdict as the voice of the people is one reason why I push back at claims that using uncharged conduct is as bad or as problematic as acquitted conduct at sentencing.) Ultimately, because Justice Scalia in Blakely makes these constitutional structure points so well (and converted me), I will use his words to further explain why I view acquitted-conduct sentencing as a betrayal of our constitutional design:
That [jury trial] right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary…. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended….
The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish…. [Other arguments depend on] the claim that the Framers would have left definition of the scope of jury power up to judges’ intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury….
Our Constitution and the common-law traditions it entrenches, however, do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury. See 3 Blackstone, Commentaries, at 373—374, 379—381. Justice Breyer may be convinced of the equity of the regime he favors, but his views are not the ones we are bound to uphold.
Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.
Ultimately, like Justice Breyer’s dissenting opinions the in the Apprendi/Blakely line of cases, Eliason makes a strong case for why he is eager to pursue “fairness and equity” by just trusting, as Justice Scalia put it, “a lone employee of the State” to engage in a “judicial inquisition” with no regard for any unanimous jury acquittals when imposing punishment. But I am sticking with Justice Scalia’s vision of the Framers’ paradigm for criminal justice so that jury trials can actually function as a “circuitbreaker in the State’s machinery of justice” rather than as just as a glorified dress rehearsals for prosecutors.