Tuesday, September 30, 2008

When Not Guilty Can Mean More Prison Time

ABC News recently had an interesting article discussing one of the most widely debated aspects of the current U.S. federal sentencing regime - receiving an increased sentence for acquitted conduct. The story begins by discussing the story of Roger White.

When Roger White helped his brother and his brother's girlfriend rob a bank in Maysville, Ky., he led police on a high-speed, 17-mile chase down country roads before he finally crashed his car and was caught.

At his 2003 trial, White, the getaway driver, was convicted of aiding the bank robbery, but the jury acquitted him of several other charges involving the use of a gun during the robbery and escape.

Nevertheless, a judge found that there was sufficient evidence that shots were fired during the robbery and subsequent police chase to add nearly 14 years onto White's prison sentence, more than doubling it even though a jury found White not guilty of most of the gun charges.

White's case, now pending before the Sixth Circuit Court of Appeals, raises questions about whether defendants should be sentenced to longer prison terms based on evidence that a jury either never heard or has rejected.

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."

This is not an uncommon occurrence, and the ABC article goes on to discuss other similar examples and touches briefly on current cases moving through the appeals process and, perhaps, eventually to the U.S. Supreme Court.

For a more in depth analysis of the issue of sentencing for acquitted conduct, one might want to review the case of United States v. Ibanga, 454 F. Supp. 2d 532 (E.D. Va. 2006) (subsequently vacated and remanded by the 4th Circuit). The court in Ibanga declined to sentence the defendant to an additional ten years based on acquitted conduct under the theory that it would be "constitutionally questionable."

After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years.

Although the Sentencing Guidelines require that district courts include acquitted conduct under certain circumstances when calculating a custody range, U.S. Sentencing Guidelines Manual § 1B1.3, comment. (backg'd.) (Nov. 2005)…, the Court declined to sentence defendant Ibanga on this basis. Sentencing a defendant to an extra ten years in prison for a crime of which he was acquitted is constitutionally questionable and would not serve the statutory sentencing factors set forth in 18 U.S.C. § 3553(a). The Court therefore sentenced defendant Ibanga to 55 months in prison, a term of incarceration that would have fallen in the middle of the Guidelines range had the acquitted conduct not been included in the calculations. This opinion explains the Court's reasoning…

Punishing defendant Ibanga for his acquitted conduct would have contravened the statutory goal of furthering respect for the law and would have resulted in unjust punishment for the offense for which he was convicted (i.e., money laundering). 18. U.S.C. § 3553(a)(2)(A). From defendant Ibanga's perspective, a Guidelines sentence would certainly have resulted in confusion as to the law, and confusion breeds contempt. Defendant Ibanga is an immigrant to this country who has not had the benefit of extensive education, much less an intensive law school seminar on post-Booker sentencing practices. What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham.

From the public's perspective, most people would be shocked to find out that even United States citizens can be (and routinely are) punished for crimes of which they were acquitted. See Coleman, 370 F. Supp. 2d at 671 n.14 ("A layperson would undoubtedly be revolted by the idea that, for example, a person's sentence for crimes of which he has been convicted may be multiplied fourfold by taking into account conduct of which he has been acquitted.") (internal quotations omitted)…

The court goes on to conduct a thorough analysis of the historical role of the jury and concludes, "It would only confirm the public's darkest suspicions to sentence a man to an extra ten years in prison for a crime that a jury found he did not commit."

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