On Acquitted Conduct

Via SL&P, ABC News has a story about a weird issue of federal criminal law - acquitted conduct. The problem goes like this:

Defendant is charged with two counts, distribution of drugs (0-20 years) and possession of a firearm in connection with that distribution (5 years). He goes to trial and the jury convicts on the drug count, but acquits on the gun charge. At sentencing, the Sentencing Guidelines for the drug distribution top out at, say (for convenience's sake), 100 months. At sentencing, the court finds that, in spite of the jury verdict, Defendant did indeed possess that gun in connection with his drug offense and enhances the sentence up to 120 months.

"But wait," you say, dragging up memories from your high school civics course, "there's a presumption of innocence in this country and the jury didn't convict Defendant of the gun charge. The judge can't override that, can he?" Well, yes. Yes he can.

Here's why. Being convicted of a charge generally subjects a defendant to a wide range of imprisonment options, like the 0 to 20 year range in this case (one of the goals of the Guidelines was to narrow the range available at sentencing). In figuring out what sentence within that range to impose, judges can consider just about any piece of information they want (aside from race, gender, religion, etc.). That includes, paradoxically, conduct for which the defendant was acquitted.

As the article points out, the courts are wrangling with this issue in the wake of Booker and its progeny:

Several federal judges have said the practice violates the constitutional right to a jury trial and a few have called on the Supreme Court to reconsider its 1997 decision, in U.S. v. Watts, upholding increased prison sentences based on so-called 'acquitted conduct.'

'[W]e have a sentencing regime that allows the government to try its case not once but twice. The first time before a jury; the second before a judge,' Judge Myron Bright of the federal Eight Circuit Court of Appeals recently wrote.

'This state of affairs is unfair, unjust and I believe plain unconstitutional,' he wrote. 'Though the government might have 'won,' everyone and everything else the defendant, the jury system, the Constitution loses.'

There is something fucked up about acquittals not placing certain information off limits at sentencing. On the other hand, if the theory is that judges should have lots of discretion within the statutory sentencing range when choosing a sentence, why should any evidence be off limits? The court is still limited to the statutory range for the offense(s) of conviction - in the example above the court couldn't impose a sentence of more than 20 years.

And if acquitted conduct is a problem, what about the (more prevalent, in my experience) situation in which judges rely on evidence that was never presented to a jury in the first place? If it can't pass a beyond-a-reasonable doubt standard, should it be off limits?

I know where the PD side of my brain falls on this issue, but I'm not so certain my logical/political/philosophical side of my brain is convinced. Not yet, anyway.