Can a judge sentence a defendant as if he were convicted of a more serious crime, even though the jury acquitted him of the more serious crime and instead found him guilty of a less serious offense? That was the question that lawyers hoped the Supreme Court would answer by agreeing to hear the case of Jones v. United States by granting certiorari. On Tuesday, however, the Supreme Court dashed those hopes by denying certiorari. But not all Justices were in accord: Justice Scalia published a dissent from denial of certiorari, an unusual circumstance all its own since dissents from denial of certiorari are issued only a few times each term.
The case arose in Washington, D.C. Three men, Joseph Jones, Desmond Thurston and Antwuan Ball, were charged with, among other things, running an “open-air” drug market — essentially a conspiracy to distribute large amounts of drugs. If convicted on that charge, the men would effectively be held liable for all of the drugs dealt by the entire “organization,” much more than any of the men had personally distributed. The jury, however, did not convict on the conspiracy charge, and instead merely found the men guilty of distributing the relatively small amount of drugs that each had personally dealt— between two and 11 grams of crack cocaine.
The case then moved onto sentencing, where the judge relied on the Federal Sentencing Guidelines, a tool designed to advise judges as to the general sentences for federal crimes, and to help judges ensure that defendants are sentenced uniformly. During sentencing, the government asked for sentences ranging from 27 to 40 years, arguing that the judge could take into account any “relevant conduct” in selecting the appropriate Guideline range, and that the conspiracy charge should be considered relevant conduct, despite the acquittals. Normally, a conviction for distributing two to 11 grams of crack cocaine would call for a sentence of two-and-a-half to six years. When it became public that the government was pursuing such unusually lengthy sentences, the jury foreperson wrote the trial judge a letter stating that “it seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves.” The foreperson also noted that “it appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty.” The foreperson’s letter has gone on to be cited in various other cases concerning the use of uncharged or acquitted conduct in determining the proper sentence.
Nevertheless, the judge accepted the government’s argument and sentenced the defendants as if they had conspired to distribute more than 500 grams of crack, even though they had been specifically acquitted of those charges. The defendants therefore received sentences varying from 15 years to almost 19 years, sentences nearly four times the length of the next highest sentences imposed for similar convictions.
The defendants then appealed, arguing that their Sixth Amendments rights had been violated since their sentences were substantively unreasonable if based only on the charges of which they were convicted. In other words, a sentence cannot be made reasonable by considering conduct of which the defendant has been acquitted.
The Court, however, denied certiorari, but not without dissent. Justice Scalia published a vigorous dissent, insisting that it was time for the Court to put an end to this practice. First marshaling precedent, Justice Scalia explained that any fact that increases the penalty to which a defendant is exposed is essentially an element of a crime, and therefore must be proved to a jury, not a judge. The Court has also held that a substantively unreasonable sentence is unconstitutional and must be set aside. It follows, then, according to Justice Scalia, 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.” Because the defendants argued that their sentences were only reasonable if the conspiracy was considered relevant conduct that could increase the Guideline penalty, the Sixth Amendment was implicated. Justice Scalia then closed by insisting that the Court should have taken this opportunity to “put an end to the unbroken string of cases disregarding the Sixth Amendment.”
Justice Scalia was not alone in his dissent. In fact, criminal cases can often lead to unusual lineups of Justices, and this case was one such example. Joining Justice Scalia in his dissent from denial of certiorari were Justices Thomas and Ginsburg. Given just one more vote, then, the Court would have granted certiorari to resolve this important issue.
The case may also be another opportunity for debate about the appropriateness of the sentencing practices broadly to come to the forefront. While courts have long limited or avoided the question of constitutional rights at most sentencing, this most recent wave of cases, led by Jones, might just usher in a new era of sentencing scrutiny. Or at least that’s what it seems the three dissenters might have in mind. But for now, it appears they will have to wait for another day.