I wonder how young line prosecutors feel about the policy decisions that DOJ is taking, including this latest one -- that sentencing judges should be able to consider acquitted conduct at sentencing. Embarrassing. From Reuters:
The U.S. Department of Justice is opposing a bipartisan panel's proposal to curtail federal judges' ability to impose longer prison sentences on criminal defendants based on conduct for which they were acquitted at trial.
Jessica Aber, the U.S. attorney for the Eastern District of Virginia, told the U.S. Sentencing Commission during a Friday hearing that its proposal to amend federal sentencing guidelines would go too far in limiting what conduct judges could consider.
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The panel faces a May 1 deadline to submit amendments to the guidelines to Congress.
Several cases are pending before the U.S. Supreme Court to bring an end to the practice on grounds it did not consider in 1997, when it held that taking acquitted conduct into account at sentencing does not violate the double jeopardy clause of the U.S. Constitution's Fifth Amendment.
Judges may do so because while juries must consider whether a criminal charge is proven beyond a reasonable doubt, judges at sentencing may consider whether facts are proven based on a preponderance of the evidence, a lower standard of proof.
Enhancing the sentence for crimes a jury found the government NOT to have proved? Why stop there?
ReplyDeleteLet's have judges add prison time for crimes that were not charged.
Better still, let's add time for crimes of which the defendant was capable, but which he chose not to attempt.
Heck, now that we're on a roll, how about adding time for crimes that a defendant, with the application of study and practice, might someday be able to commit.
Soon enough, following this path, we can imprison our countrymen for crimes that OTHERS might theoretically be able to commit.
Robert - all of that exists:
ReplyDeleteParagraph 1 - its called relevant conduct (reasonably foreseeable)
Paragraph 2 and 3 - preventative detention (still debating if crime drop from 90s was a result)
Paragraph 4 - add "shoot or" and you have the inherent racism in our system that results in people being murdered by police officers...not to mention arrested a searched because of their color.
Hey Mr. Kuntz. You are late to the party. Your list of horribles already exists. It is called RICO conspiracy. You can be punished for conduct that you were acquitted yet indirectly should have known others were going to commit. I remember years ago in the Courtbroom case, Al Sepe was acquitted of a luandry list of crimes but a hung jury on RICO conspiracy. The 11th held that on re-trial, the government could include the acuitted crimes as part of the conspiracy. He smartly saw the handwriting on the wall and took a plea. If the governmet wants to nail you, they will find a way.
ReplyDeleteAnd they will cheat, steal, and lie to get it done.
ReplyDelete