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The jury acquits, the judge still sentences. Can that be?

The longstanding question of a judge’s power to impose a longer sentence by relying on conduct that the jury rejected as evidence of guilt will linger further.  Over the dissents of three Justices — one fewer than the number needed to grant review — the Court on Tuesday turned aside the latest attempt to get that constitutional question answered.  The denied case was Jones v. United States.

The jury in the case of three Washington, D.C., men found them not guilty of a conspiracy to run an “open air” market for large quantities of illegal drugs on the streets of the nation’s capital, but it did find them guilty only of selling small quantities.  If the sentencing had followed those results, the three men would have faced sentences under federal guidelines of between thirty-three and seventy-one months.

The judge, however, decided that sentencing could also take into account the conduct that had led to the more serious conspiracy charge (the so-called “acquitted conduct”) and opted to give the three men sentences ranging from 180 to 225 months.   They argued unsuccessfully, in a federal appeals court, that the longer sentences violated their Sixth Amendment right to have a jury decide the issue of guilt. The judge, in essence, convicted them of the more serious offense, too, despite the jury’s contrary verdict.

Their appeal to the Supreme Court pressed that argument anew, but the Court declined review.  Justice Antonin Scalia, in a dissenting opinion joined by Justices Ruth Bader Ginsburg and Clarence Thomas, argued that the practice at issue “has gone on long enough.”

The Jones petition, Scalia wrote, presented a real-world case of a kind that the Supreme Court had previously said it was waiting for to address the issue.   This case, he added, “is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  [They] were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.”

The Court, Scalia concluded, should have granted review, either to “put an end to the unbroken string of cases disregarding the Sixth Amendment,” or else go ahead and eliminate the “Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”

The Court’s brief order denying review did not reveal how the other six Justices had voted on the case, and it contained no explanation for the refusal to hear the case.  However, because it takes the votes of four Justices to grant review, it is clear that all of other Justices who did take part in the order voted against hearing the case.

The Court also turned down another significant sentencing case — a test of whether the Sixth Amendment right to confront witnesses against an accused at a criminal trial applies to the sentencing in the case, including the sentencing phase of a capital case.  The petition in the case of an Idaho bank robber, Dunlap v. Idaho, contended that his right to confrontation was denied when the judge allowed testimony against him by a mental health expert to be used as evidence supporting a death sentence, even though that expert was not called to the witness stand.

The Court on Tuesday did not grant any new cases for review.

In one case, which has been before the Court twice before, the Justices again asked the U.S. Solicitor General for the federal government’s views on Samantar v. Yousef.  In its present status, that case tests whether a former official of a foreign government loses immunity from a lawsuit under U.S. law for alleged human rights violations while in office, on a theory that those actions violated the norms of international law (so-called jus cogens).  There is no deadline for the government’s response to be filed.  (Justice Elena Kagan took no part in this order.)

Recommended Citation: Lyle Denniston, The jury acquits, the judge still sentences. Can that be?, SCOTUSblog (Oct. 14, 2014, 11:04 AM),