In a topic that many believe never seems to get the attention that it deserves, a recent study by the United States Sentencing Commission shows that the use of acquitted conduct by federal judges at sentencing is still in full swing.
This is true despite the fact that several recent United States Supreme Court decisions regarding the Sixth Amendment have transformed the federal sentencing guidelines from mandatory to advisory, thus giving judges much more discretion in sentencing defendants.
Not Guilty, but still Guilty Even if someone is found not guilty by a jury of one count, but convicted of another count, a federal judge can sentence them as if they were found guilty on both counts.
There are also instances where defendants are sentenced for crimes of which they have not been indicted or for uncharged conduct.
Many experts believe it is, and remains, one of the most offensive abuses in federal sentencing.
"It's a practice that is obviously ripe for abuse," said Jonathan Turley, a law professor at George Washington University.
"The prosecutors can use this technique to punish someone for a crime that they're not willing to formally charge and prosecute, and the result is that the defendant receives the penalty but none of the due process protections.
" So why is Acquitted Conduct Sentencing Permitted? The United States Supreme Court held in United States v.
Watts, 519 U.
S.
148 (1997) that federal district court judges may enhance the sentence of a convicted criminal defendant based on conduct of which the defendant was acquitted by a jury of their peers.
If the jury convicts the defendant on one charged offense and, in the same trial, acquits the defendant on another charged offense, Watts holds that the Double Jeopardy Clause of the Fifth Amendment does not forbid the government from using the acquitted conduct to increase the defendant's punishment at sentencing.
The underlying reason that federal courts are allowed to consider acquitted conduct is because there are different burdens of proof at trial and at sentencing.
At sentencing all the prosecution must do is prove the acquitted conduct by a preponderance of the evidence which is a standard that falls far short of beyond a reasonable doubt.
Federal judges are entitled to consider any fact when sentencing a defendant as long as the sentence does not exceed the statutory maximum for the offense.
In addition to acquitted conduct, this fact holds true to uncharged conduct as well.
David L.
Mayle The case of United States v.
Mayle, 334 F.
3d 552 (6th Cir.
2003) illustrates just how this concept can result in a draconian sentence.
Mayle was found guilty of mail fraud and forgery in which he faced a sentence of 15 to 21 months on the original charges.
However, at his sentencing the prosecution admitted evidence that it felt showed Mayle was responsible for a murder years before.
The sentencing court determined that the prosecution had proved by preponderance of the evidence that Mayle was responsible for the murder and his sentence was increased to 30 years.
As the statistical data shows, cases like Mayle are becoming commonplace in today's federal sentencing.
However, there should be no place in our federal judicial system for this type of destruction to the Sixth Amendment.
If the federal government feels that a defendant has committed a crime it should obtain an indictment and put him on trial for it.
Simply put, a person should not be sentenced for a crime unless he's been convicted of that crime.