Judge Kavanaughs fight for stronger jury rights
Orrin Hatch is the senior member of the Senate Judiciary Committee.
A focus of many, including myself, in evaluating Judge Brett Kavanaughs judicial record and philosophy has been his opinions, both judicial and academic, onthe constitutional separation of powers. And rightly so, as a demonstrate commitment to our constitutional structure should be a prerequisite for anyone nominated to the Supreme Court.
But the Supreme Courts docket is not limited to broad structural questions, however important they may be, and neither isthat ofthe U.S. Court of Appeals for the District of Columbia Circuit. Kavanaughs decisions have spanned the full spectrum of cases and controversies, including those that impinge onthe liberty of some of the most overlooked individuals in America — criminal defendants. One example, especially important to me, ishis objection tobasing prison sentences on conduct for which a defendant has beenacquitted bya jury.Its a practice as outrageous as it sounds.
Imagine that youre a defense attorney. Your client,Antwuan Ball, wascharged with distributing a few grams of crack cocainein addition toconspiring with an extensive networkof crack dealers. You know your client is small-time and hadnt gottencaught up with thecrime ring, and you fight to get him off.After a drawn-out trial, where youblast the prosecution for failing to present any definitive proof of conspiracy,you sit next to your nervous client and wait forthe jury to announce his fate. Twelve men and women fileinto the courtroom. You hold your breath as the foreman announces Ball guilty of individually distributing crack. You look atyour client, but his face is buried in his hands. Conviction on the distribution count will probably lead to a few years in prison, but the conspiracy charge carries a much longer sentence. What will the jury say? Not guilty, your Honor. Acquittal! This time, your client looks at you, tears of relief in his eyes. The jury simply didnt believe, beyond a reasonable doubt, that your client was a conspirator.
You tellyour client tobe optimisticabout his sentence.The judge can only punish him for the few grams he distributed himself becausethe jury acquitted him of conspiracy.That turns out to befalse comfort: The jurys acquittal is little more than a speed bump at sentencing.The judgefinds, using the lower preponderance-of-the-evidence standard that applies at sentencing, thatyour client played a rolein the conspiracy and holds him responsiblefor distributing over 500 grams of crack. He sets the sentence at nearly 20 years — more than a decade longer than he would have faced for the sole distribution charge the jury convicted him of.
Ball, whose story is real,was punished for committing a crime that the jury foundthere was at least reasonable doubthe did not commit. I think thats a problem, and so does Kavanaugh.
A brief aside on the history of federal sentencing law is appropriate to understand how it is that acquitted conduct can be considered at sentencing, and why thispracticeis constitutionally suspect. The Fifth and Sixth Amendments, which guarantee due process of law and the right to a jury trial for the criminally accused, respectively, are the foundation of our criminal justice system. Together, theyprotect defendants from conviction unless found guilty, beyond a reasonable doubt, by an impartial jury.As Alexander Hamilton wrote in Federalist No. 83, juries prevent arbitrary punishments upon arbitrary convictions [that] have ever appeared to me to be the great engines of judicial despotism….Justice depends on conviction byajury, not a judge.
Once convicted, however, a defendants sentence is generally up to the judge, not the jury. Historically, statutes set out broad sentencing ranges that left the judge freeto choosea sentencethat suited the defendants individual circumstances. Judicial discretion to sentence defendants within those statutory ranges has ebbed and flowed in recent decades, most notably with the establishment of the mandatory Sentencing Guidelines in 1987 and the Supreme Courts 2005 ruling inUnited States v. Bookerthatmadethose Guidelines advisory, not binding.
A constant in federal sentencing over the years — both before and since the Guidelines went into effect — is the standard of proof that applies to the judge at sentencing. While the reasonable-doubt standard applies to factual findings made by a jury at the guilt stage of a criminal prosecution, the lower preponderance-of-the-evidence standardappliesto factual findings made at the sentencing stage of a criminal case.
The difference in those standards of proof means that a sentencing court can consider acquitted conduct. Under 18 U.S.C. 3661, Supreme Court precedent, and the Sentencing Guidelines,a judge is free to consider a wide range of relevant conduct for the purpose of determining an appropriate sentence. Relevant conduct can include evidence that a defendant has committed other crimes, including the very crimes for which a jury acquitted the defendant. Like other factual findings at sentencing, the judge must simply find by a preponderance of the evidence that the defendant has committed the crime that the jury acquitted him of.
Every single circuit court has found it reasonable for a judge to enhance a sentence based on acquittedconduct.This follows the Supreme Courts 1997 decision inUnited States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge becausea jurys verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment.
The bottom line is that defendants like Ball can be punished for doing something that the jury isnt sure they did. Even though a defendant cant be convicted for that conduct, the ties between crime and punishment must betightto be fair.In the current system, a judge can inflate a defendants sentence for a convicted crime to make up forthe jurysdecision to acquit him of a separate charge.Judges should not wield that kind of veto.
Im troubled by the consequences this has on thevenerated roleof juries in criminal justice. Beyond these policy problems, whichare in my purview as alegislator, are constitutional concerns, which have rankled Kavanaughs judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to questionwhymany key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.
In 2015, Kavanaughwrote separately to build onJudge Patricia Millettsexcoriation ofthe acquitted-conduct doctrine.In his customary clear prose, heexplained thatthe law allowsa judge [to]impose a sentence higher than the sentence the judge would have imposed absent consideration ofacquitted conduct.To point out the constitutional paradox, he askedwhy, ifa defendant may have a right tohave a jury find beyond a reasonable doubtthe facts that make [him]guilty[and] receive[d], for example, a five-year sentence,why[doesnt he]have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?
I find itremarkablethat Kavanaugh, despite his open campaign againstthe use of acquitted conduct at sentencing,hasrebuffed the easy temptation of judicialactivism.In the 2015 caseUnited States v. Bell,he agreed that current precedent prevented the D.C. Circuit from reviewing the issue.The only appropriate action, he said,was forsentencing judgesto think twice beforechoosing to consider acquitted conduct. Only a few months ago, he again wrote separately inanacquitted-conductcaseto reaffirm that precedent tied his hands, dissenting in part inUnited States v. Brown. But he didnt abandon his drumbeat forchange through the proper channels. He concluded, If th[e]system seems unsoundand there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairnessCongress and the Supreme Court may fix it, as may individual district judgesin individual cases.
Bound bycurrent law, Kavanaughjoinedtheopinion that upheld Balls sentence. Ball asked the Supreme Court for review, buthis request was denied afteronly three justices voted to grant certiorari. Justices Clarence Thomas and Ruth Bader Ginsburg joined Justice Antonin Scalias acerbic dissent, whichnotedthatthe only reason Ball received such a long sentence was the judges finding that he was a co-conspirator. Of course, that was the very finding the jury had rejected at trial.And it would appear to be at odds withSupreme Court precedent thatany fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury. Itmay notbe found by a judge.As Scalia wrote,This has gone on long enough. Indeed.
The Supreme Courts evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of consideringallrelevant conduct at sentencing, including acquitted conduct. But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness ifnot of constitutional law.I plan to soonintroduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them not guilty.The contours of civilization require fairness in our criminal justice system, and the Constitution demands that Americanmen and womenholdprosecutors and judges accountable. The role of the jury is central to the Constitutions protection of individual rights, and it is time for Congress to restore power to the people.
Sure, it would be much easier to let circuit judges reverse sentencesthat werebased on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. Im happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didnt do. Its frustratingto me, and its frustrating to Kavanaugh. But hehas prudently declined to step outsideof his constitutional role. Time and time again, he has respectedprecedent and affirmed the repugnant powerof sentencing judges to consider acquitted conduct.However, Kavanaugh has wisely used his judicial platform to shedlight ontroublinglaw that shackles the rights of criminal defendants. Hislegal acumen,compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, andfaithfuljustice.