In United States v. Bagcho, decided last week, the D.C. Circuit (following circuit precedent) upheld a sentence imposed in part based on conduct for which the defendant had been acquitted. As the majority (per Judge Rogers) explained:
Bagcho contends that the district court violated his Fifth and Sixth Amendments rights under the Constitution by calculating his sentence based on uncharged and acquitted conduct. But he acknowledges that in United States v. Bell, 795 F.3d 88, 103 (D.C. Cir. 2015), the court held a sentencing judge may consider uncharged or acquitted conduct proved by a preponderance of the evidence provided the sentence does not exceed the statutory maximum or increase the statutory mandatory minimum. He “maintains that Bell and similar cases are inconsistent with the Fifth and Sixth Amendments, and he seeks to preserve his claim for future review.” The concurrent sentences of 300 months did not exceed the statutory maximum of life imprisonment for Counts I and II, nor was the statutory mandatory minimum increased by consideration of the uncharged or acquitted conduct. Consequently, the court must affirm the district court’s consideration of uncharged and acquitted conduct in calculating Bagcho’s sentence.
Apparently every other circuit to consider the issue agrees. But Judge Millett, concurring, objected:
I write separately to express my continued opposition to the use of conduct for which a defendant was acquitted to increase the length of that person’s sentence. It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant did not commit.
And as she points out, another judge who has a problem with the practice is now-Justice Kavanaugh. From his dissent from denial of rehearing in the Bell case:
Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you 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?
It seems like a fair question. I have no idea what the originalist answer would be, but it also seems like an interesting issue to investigate. And it illustrates that originalism often does not have an obvious political valence. The outcome could go either way, depending on what the history shows.
(Via How Appealing).
Posted at 6:13 AM