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"The Jury Unanimously Found You NOT GUILTY on Count 3; Nevertheless, You Will Serve Three Additional Years for the Crime You Committed as Alleged In That Count."

by: Guest Blogger Bruce Harvey

It is understandable that most people's knowledge of the criminal justice system begins and ends with "innocent until proven guilty". The dirty secret of the criminal justice system however, is that some can be sentenced for conduct that a jury said you were "not guilty" of committing! How is that possible, you ask? Back in 1997, the US Supreme Court decided a case that allowed Judges to sentence multi-count defendants for conduct underlying acquitted conduct. It is a decision that prompts an immediate gut-reaction: that can't be the case! Yet, it is a practice that has continued unabated since the Supreme Court blessed it in United States v. Watts, 519 US 148 (1997) over 20 years ago.

Numerous commentators, scholars and every criminal defense attorney who practices federal criminal defense have written and argued how this practice violates the spirit and intent of the Fifth and Sixth Amendments. Watts established that a sentencing Judge may consider acquitted conduct otherwise proven-as determined by the Judge, not a jury-under a preponderance standard to determine a defendant's sentence. Indeed, the Court said that a "not guilty" verdict is not a rejection of any facts or a finding that a defendant is actually innocent, but only "proves the existence of a reasonable doubt." Therefore, an acquittal provides no barriers to the Government "relitigating an issue" under a lower standard of proof at sentencing.

What then, you say, is the point of the jury? Using acquitted conduct obviously undermines and devalues the role of the jury, and makes a mockery of the function of the jury whose job is, after all, to decide the very issue of guilt or innocence. Likewise, this practice gives prosecutors a second bite at the apple of punishment under circumstances that disfavor the Defendant. It also empowers prosecutors to overcharge with the intent of getting one conviction and getting an enhanced sentence anyhow. It is a pernicious and despicable practice.

Is there any hope? Yes. A trilogy of Supreme Court cases have reinvigorated and reestablished the role of the jury in criminal cases. In a series of cases, most recently culminating in Alleyne v. United States, the Supreme Court has reinforced, and extended the line in the sand that separates the power and reach from the bench from the province of the jury. Taken together, I believe that these cases firmly establish that a judge's sentencing power begins and ends with the jury. Watts was a monumental breach of the Sixth Amendment, and its corrosive effect on a defendant's jury right continues today. Now is the time for a direct Sixth Amendment assault on using acquitted or unproven conduct at sentencing and bringing back the historical and powerful role of the jury.

Stay tuned.