During impeachment storm, senators cross aisle to lessen mass incarceration
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A jury recently found Eric Beck not guilty of murder, but the judge sentenced him to prison for it anyway. The jury convicted Beck of firearms possession for which sentencing laws would have recommended he receive two to six years in prison. Nevertheless, the judge sentenced Beck to 20 to 33 years because he disagreed with the jury and believed—based on a lower legal standard than what our Constitution requires—that Beck was also guilty of murder.

All federal (and most state) judges currently have the ability to ignore a jury’s verdict and undermine the requirement that criminal convictions be imposed only after having been proven “beyond a reasonable doubt.” Instead, federal law currently allows judges to increase a person’s sentence if they determine that the government has proven its accusations under a mere “preponderance of evidence” standard. Although Beck’s sentence was ultimately overturned in a state supreme court, such “acquitted conduct sentencing” remains legal practically everywhere else.

The Bill of Rights sets out protections for the accused, including the right to trial by jury and due process of law. The Double Jeopardy Clause rejects retrying—and thus punishing—a defendant for a crime for which he has been acquitted. And, as the Supreme Court has explained, the Sixth Amendment’s “core concern” is to reserve critical facts for determination by the jury. Punishing an accused person based on acquitted conduct abrogates all of these constitutional protections as well as notions of fundamental fairness.

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Jurists across the ideological spectrum have assailed the practice. Five years ago, the late Justice Antonin Scalia, joined by Justices Ruth Bader GinsburgRuth Bader GinsburgBarrett sworn in as Supreme Court justice by Thomas Roberts to administer judicial oath to Barrett Tuesday Hillary Clinton tweets 'vote them out' after Senate GOP confirm Barrett MORE and Clarence ThomasClarence ThomasHouse Judiciary Republicans mockingly tweet 'Happy Birthday' to Hillary Clinton after Barrett confirmation Barrett sworn in as Supreme Court justice by Thomas Roberts to administer judicial oath to Barrett Tuesday MORE, wrote that sentencing based on acquitted conduct “has gone on long enough.” Former Justice John Paul Stevens rejected the practice and Justices Neil GorsuchNeil GorsuchBarrett sworn in as Supreme Court justice by Thomas Supreme Court rejects Democrats' bid to reinstate mail-in ballot extension in Wisconsin Clarence Thomas set to swear in Barrett at White House MORE and Brett KavanaughBrett Michael KavanaughBarrett sworn in as Supreme Court justice by Thomas GOP Senate confirms Trump Supreme Court pick to succeed Ginsburg Clarence Thomas set to swear in Barrett at White House MORE each eschewed it as circuit court judges. Just last year, D.C. Circuit Court of Appeals Judge Patricia Millett wrote that the use of acquitted conduct at sentencing, “allowed the government a second bite at the incarceration apple,” and explained that “Incarceration without conviction is a constitutional anathema.”

A jury of one’s peers serves as a democratic bulwark against the imposition of arbitrary government punishment. Our Founders understood that criminal prosecution was one of the strongest tools a government could use against its people. They determined that their government must prove its case to the accused’s community through a jury. A rule that allows a judge to base a person’s sentence on unproven accusations a jury has actually rejected turns these constitutional protections on their head.

Jurors understand the stakes in the cases before them, sometimes sacrificing their lives for months to ensure justice is done. One juror published a moving letter to the judge after he learned the defendant in his trial was to be sentenced for conduct the jury had purposefully rejected. He wrote, “What does it say to our contribution as jurors when we see our verdicts…not given their proper weight? …Had [prosecutors] shown us hard evidence, [a guilty verdict] might have been the outcome, but that was not the case.”

Despite the many condemnations of acquitted conduct sentencing, it remains accepted practice. The Due Process Institute—a bipartisan nonprofit dedicated to restoring fairness in the criminal legal system—has been leading the fight to abolish this practice both in courts and on Capitol Hill. We have recently filed an amicus brief encouraging the Supreme Court to review the constitutionality of this practice. But we can’t afford to wait for the High Court to do the right thing.

Therefore, we proudly endorse bipartisan legislation—the Prohibiting Punishment of Acquitted Conduct Act of 2019 (S.2566)—introduced last week by Senate Minority Whip Dick DurbinRichard (Dick) Joseph DurbinDemocrats warn GOP will regret Barrett confirmation Democrats brace for nail-biting finish to Senate battle Democratic Senate emerges as possible hurdle for progressives  MORE (D-Ill.), Sens. Chuck GrassleyCharles (Chuck) Ernest GrassleyBarrett confirmation stokes Democrats' fears over ObamaCare On The Money: Power players play chess match on COVID-19 aid | Pelosi bullish, Trump tempers optimism | Analysis: Nearly 1M have run out of jobless benefits Grassley: Voters should be skeptical of Biden's pledge to not raise middle class taxes MORE (R-Iowa), Patrick LeahyPatrick Joseph LeahySchumer says he had 'serious talk' with Feinstein, declines to comment on Judiciary role Durbin says he will run for No. 2 spot if Dems win Senate majority Democrats seem unlikely to move against Feinstein MORE (D-Vt.), Mike LeeMichael (Mike) Shumway LeeWhite House to host swearing-in event for Barrett on Monday night Pence adviser Marty Obst tests positive for COVID-19 Two Loeffler staffers test positive for COVID-19 MORE (R-Utah), Cory BookerCory Anthony BookerDemocratic senators unveil bill to ban discrimination in financial services industry Obama endorses Espy in Mississippi Senate race Durbin says he will run for No. 2 spot if Dems win Senate majority MORE (D-N.J.) and Thom TillisThomas (Thom) Roland TillisTrump campaign asks Supreme Court to halt North Carolina absentee ballot plan White House to host swearing-in event for Barrett on Monday night Democrats brace for nail-biting finish to Senate battle MORE (R-N.C.). This proposed law would make it clear that a judge cannot increase a person’s prison sentence based on acts for which a person was found not guilty. It ensures that a person who is punished with prison is only punished for those crimes that a prosecutor proved, not those they would have liked to have proven.

Justice is not a partisan issue and every American wants a fair and effective criminal justice system. That requires respect for due process, restoring the primacy of the citizen jury, and adhering to the core principles of our Constitution. We applaud Grassley and Durbin for leading the effort to reach across the aisle in a difficult political environment to affirm that Americans should not serve prison time for crimes they did not commit.

Shana-Tara O’Toole is the Founder and President of the Due Process Institute. The Due Process Institute is a bipartisan 501(c)(4) who educates, lobbies, and litigates on behalf of the principles of fundamental fairness and procedural due process rights in the criminal legal system. In conjunction with today’s legislation introduction, the Due Process Institute also announces the launch of its national education, advocacy, and litigation campaign #JuriesDecide.