While many people disagree (incorrectly) on the jury’s right to judge the law as well as the facts, it is supposed to be well-settled that the jury is, indeed, the fact-finder in all trials by jury. Unfortunately, the power vortex that is government has not been satisfied merely to deny the jury’s function in standing as a bulwark against unjust laws by refusing to enforce them, but in recent years it has more and more usurped the jury’s role as the finders of fact in the courtroom.
Oftentimes we hear from jurors here in the FIJA office who are appalled to learn once a trial is over that they convicted someone without knowing the whole story because relevant evidence had been pre-filtered out by the judge. They want to know how they can retract their Guilty vote after the fact, and I have to explain to them how very little power they have now that they’ve played into the hands of a far from impartial referee fixing the game in favor of conviction. The best they can do is to beg a biased judge for leniency on behalf of the defendant or perhaps shame the judge publicly into leniency, neither of which can force the judge to do the right thing and often which are ignored.
But it’s one thing for corrupt to courts at least to feel they have to hide their power grab under the guise of trying to ensure a fair trial. It is another thing entirely when they openly and blatantly ignore jury rights and jury verdicts, go home for dinner without giving it a second thought, and have no problem looking themselves in the mirror the next morning. The fact that they don’t even feel like they have to justify or conceal their power grab is a flashing red indicator of a more heightened level of corruption and lack of conscience because it shows they either have no moral qualms about what they are doing, or they feel so protected that they need not conceal their unconscionable abuses of their positions.
One such abusive loophole they are not only exploiting, but have apparently invented out of whole cloth, is called sentencing on acquitted conduct. Here’s how it works:
1. The jury acquits a defendant of some charges, but convicts on one or more others.
2. The judge unilaterally decides, that despite an outright jury acquittal on one or more of the acquitted charges, he or she believes the defendant to be guilty of them.
3. The judge unilaterally “enhances” the defendant’s sentence for convicted charges based on his or her belief that the defendant was actually guilty of one or more of the acquitted charges.
This month the Supreme Court had a chance to consider reining in such corrupt and abusive judges, but it instead made a horrifying move this morning in denying certiorari in the case of Joseph Jones, Desmond Thurston, and Antwaun Ball v. United States. (We’ve previously discussed Antwuan Ball’s case in particular here and here.)
To their credit, Justices Scalia, Thomas, and Ginsburg were in dissent. This is especially excruciating, however, given that a single additional Supreme Court justice on their side would have allowed this case to be heard. One. Just one more person had to do the right thing.
Their dissent reads:
A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.
Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal. See Rita v. United States, 551 U. S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment). If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U. S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).* We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States, 552 U. S. 38, 51 (2007). It unavoidably follows that any 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. It may not be found by a judge.
For years, however, we have refrained from saying so. In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case. We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. 551 U. S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”). Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range. See, e.g., United States v. Benkahla, 530 F. 3d 300, 312 (CA4 2008); United States v. Hernandez, 633 F. 3d 370, 374 (CA5 2011); United States v. Ashqar, 582 F. 3d 819, 824–825 (CA7 2009); United States v. Tread- well, 593 F. 3d 990, 1017–1018 (CA9 2010); United States v. Redcorn, 528 F. 3d 727, 745–746 (CA10 2008).
This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it 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. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.
On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated. 744 F. 3d 1362, 1369 (2014). We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.
Professor Douglas Berman, who submitted an Amicus brief in this case, expresses his disappointment here:
Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
Given that we now have no idea how long the Supreme Court will continue to ignore this blatant disregard for compliance with the Sixth Amendment—a surefire guarantee that it will continue and expand—it is time to redouble our efforts to educate everyone about the jury’s right of conscientious acquittal. Antwuan Ball was convicted of one single charge of a victimless drug transaction. For many people, simply understanding jury nullification would have been enough for them to refuse to convict on that charge as well. But even for those who think that victimless drug offenses or other victimless offenses deserve some punishment, it is imperative that we fully inform them about the door they are opening for egregiously harsh sentencing on acquitted conduct when they convict on such charges.