U.S. Justice Dept takes a hard line on sentencing reform

By Hassan Kanu - Reuters

March 7 (Reuters) - The U.S. Justice Department is opposing a bipartisan proposal to restrict judges’ ability to impose longer sentences based on alleged crimes even if a unanimous jury has acquitted the defendant of those very same allegations.

The government’s arguments are unavailing and the position is simply an expression of the Biden administration’s pivot back to ineffectual “tough-on-crime” politics.

The practice of using acquitted crimes as a basis for imposing longer jail terms has elicited visceral public outrage, intermittently, for decades.

In 2008, a federal judge received a letter from “Juror No. 6,” a man who heard the trial of an alleged leader of the so-called Congress Park Crew, described by prosecutors as a violent drug gang in southeast Washington D.C.

No. 6 was furious.

After about 10 months of testimony about an organized criminal conspiracy, the jury voted to convict Antwuan Ball for a single hand-to-hand drug transaction -- and acquitted him of racketeering, murder and dozens of other charges.

He was left facing about six years in prison, according to sentencing guidelines. But Ball was sentenced to nearly 19 years – based on the allegations about gang leadership the jury had explicitly considered and rejected, as a judge on the 8th U.S. Circuit Court of Appeals noted shortly after the trial.

Juror No. 6, a government economist who lived in D.C. for decades, laid out how seriously he and others had taken their duty. He suggested that, in the end, the court simply did what prosecutors wanted.

“What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight?” he asked.

That straightforward observation, and the juror’s outrage, highlighted the obvious dissonance between “acquitted-conduct sentencing” and the Constitution’s fundamental guarantees of due process and trial-by-jury.

Juror No. 6’s letter has since been cited by federal judges and in petitions to the U.S. Supreme Court to revisit its rulings permitting “acquitted-conduct sentencing,” including in a pending case.

The same basic reasoning -- that Constitutional rights are warped when a judge supplants a jury's decision -- underlies the U.S. Sentencing Commission’s bipartisan proposal to curtail judges’ ability to consider acquitted conduct during sentencing (The Supreme Court is apparently waiting for the Commission to act first.).

The practice has been almost universally condemned. Most of the current sitting justices have questioned whether the practice is constitutionally sound in previous rulings, as my Reuters colleagues reported in January. And a 2010 survey of all federal district judges in the country found that 84% did not think acquitted conduct should be considered during sentencing.

Yet, the Biden administration and the Justice Department are opposing the Commission’s efforts – a position that does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration.

The White House didn’t respond to my requests for comment.

The Justice Department pointed me to its letter to the Commission and testimony during a hearing in February.

In essence, the DOJ is opposing the reform proposal because it is a significant departure from longstanding practice and precedent, according to its testimony. A spokesperson also highlighted that the issue only arises in split verdicts – when someone is convicted on some counts and acquitted on others.

At its core, the administration’s central argument is just an appeal to tradition – a tradition that virtually the entire legal community recognizes as unconstitutional, or fundamentally unjust.

Supreme Court justices and other judges have described the practice as “repugnant,” “uniquely malevolent,” and “Kafka-esque,” as noted in a 2022 brief to the high court on this issue.

Lawmakers have also introduced at least two bills seeking to alter the practice in the last five years, and one passed the deeply-divided House of Representatives with a nearly unanimous vote.

Moreover, the DOJ’s point about the infrequency of the practice is questionable: U.S. District Judge Carlton Reeves, who sits in Mississippi and chairs the Sentencing Commission, pointed out during the Feb. 24 hearing that the DOJ had said “it might happen a lot,” and that he remained unaware of how frequently judges engage in the practice.

What's more, there is evidence that the practice is underlaid with discrimination, and exacerbates existing disparities.

For example, Black males receive sentences at least 19% longer on average than similarly situated white male defendants, according to the Sentencing Commission. And sentencing data suggests more Black and minority defendants have acquitted conduct used against them than white defendants, according to research published in 2014 by the Santa Clara Law Review and in 2008 by the American Bar Association.

Acquitted-conduct sentencing also contributes to what’s known as the “trial penalty” – the difference between sentences prosecutors offer in plea deals versus the much longer sentences often handed down after trial. It creates a dynamic where prosecutors overcharge because they can still urge a judge to sentence based on all charges, even rejected ones; and defense attorneys urge clients to plead guilty to even questionable charges to get a better outcome.

Melody Brannon, the federal public defender in Kansas, highlighted this incongruity during her testimony on Feb. 24.

What “I think is really driving acquittal conduct sentencing” is “the idea of ‘wrongful acquittals,’” or the notion that people who are arrested and charged are often guilty of something, even if acquitted, Brannon said.

That notion is fundamental to the tough-on-crime approach to public safety that dominates the U.S. justice system, despite the lack of evidence that a single-minded focus on punishment improves public safety, as I wrote in a previous column.

It's also starkly at odds with the Biden administration's pledges to address mass incarceration and discrimination in the courts -- much like the broader "fund the police" strategy for crime prevention that the White House adopted in its 2023 budget request.

Ultimately, there just isn’t much substance to the government's position other than references to past practice and tradition -- always an argument that undermines reform.