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Acquittals, Sentencing Facts, and Burden of Proof

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.


Kent, would you also say any and all judges should have discretion to ignore a conviction he disagrees with (for whatever reason) and then, after explaining on the record he his reason for disagreeing with the jury, give the lowest legal sentence for the conviction because he disagrees with a conviction? I ask because the "logical" reason to think jury findings should matter at sentencing is because we think, due to the Sixth Amendment, we think jury findings are constitutionally consequential. I do not think a judge should feel free to ignore at sentencing either a conviction or an acquittal. If you think a judge should be allowed to ignore an acquittal at sentencing, please explain if/why you think a judge should likewise be able to ignore a conviction.

I surmise you have a preference for a mandatory system where all offense essential offense facts are treated like elements. On this we agree. But I will not embrace your "logic" until you explain why you think it logical to let judges only ignore acquitals at sentencing and not convictions.

I thought I had explained pretty clearly, but here goes.

No, I do not think that a judge should ignore a jury's verdict. The verdict should be respected for what it represents, taking into account the burden of proof. What it represents is not symmetrical because the burden of proof is not symmetrical.

The verdict of "not guilty" is a misnomer. It actually means "not proved beyond a reasonable doubt." It should be regarded as conclusive of any fact where reasonable doubt is sufficient to preclude that fact from being treated as true. It should not be regarded as conclusive when a fact need only be proved to a lesser standard.

The verdict of "guilty" does not mean guilty to a certainty, beyond any doubt.

So, in a capital case, "residual doubt" may be considered for penalty notwithstanding a jury verdict of guilty. That is not ignoring the verdict, it is only understanding what the verdict represents. The best known example is the Hillside Stranger. The Strangler certainly deserved death, but the jury found the evidence that Angelo Buono was the Strangler just barely sufficient for conviction and quickly brought back a life verdict in the penalty phase. In a state where judges have the last word on sentencing, it would be appropriate for them to do the same. I would not have a problem with a judge considering residual doubt in a noncapital case as well.

What's with the scare quotes around "logic," Doug? The logic behind my position is well established and has been accepted by, among others, the Supreme Court of the United States.


Kent puts in different and perhaps clearer wording the point I was making in my comment on an earlier post today.

I want to note this question of yours: "Kent, would you also say any and all judges should have discretion to ignore a conviction he disagrees with (for whatever reason) and then, after explaining on the record he his reason for disagreeing with the jury, give the lowest legal sentence for the conviction because he disagrees with a conviction?"

The answer here is easy, and has nothing to do with sentencing. If the judge thinks a reasonable jury could not have convicted, he grants the defendant's motion for a Rule 29 acquittal. There NEVER IS a sentencing.

All fair points, Bill and Kent, but I give heightened import to the Framers obvious eagerness to give "the people" significant power in the judicial branch, which in turn means I believe a jury verdict of not guilty should be respected as a statement that "the people" do not believe the defendant ought to be punished for the conduct alleged in the charge leading to an acquittal.

Critically, the jury trial right is TWICE mentioned in constitution --- as both a structural right and a personal right --- whereas burdens of proof are just a modern judicial gloss on due process. I am always inclined to respect the text of the Constitution over modern judicial glosses on due process, and thus I think jury acquittals merit more respect at sentencing whatever efforts might be made to use modern proof burdens to allow judges to increase sentences based on facts not deemed sufficient for a conviction by "the people."

In other words, I see your "logic" based on burdens of proof, but not based on fidelity to the concerns expressed by the Framers when placing jury trial rights in the Constitution.

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