The U.S. Justice Department opposes a bipartisan proposal to restrict judges’ ability to impose longer sentences based on alleged crimes even if a unanimous jury has acquitted the defendant of those very same allegations, reports Reuters. The government’s arguments are an expression of the Biden administration’s pivot back to ineffectual “tough-on-crime” politics. The practice of using acquitted crimes as a basis for imposing longer jail terms has elicited public outrage intermittently for decades. In 2008, a federal judge received a letter from “Juror No. 6,” a man who heard the case against Antwuan Ball, an alleged leader of the Congress Park Crew. After 10 months of testimony about an organized criminal conspiracy, the jury voted to convict Ball. He was left facing about six years in prison, yet was sentenced to nearly 19 years. “What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight?” he asked. That observation, and the juror’s outrage, highlighted the dissonance between “acquitted-conduct sentencing” and the Constitution’s fundamental guarantees of due process and trial-by-jury.
Juror No. 6’s letter has been cited by federal judges and in petitions to the U.S. Supreme Court to revisit its rulings permitting “acquitted-conduct sentencing,” including in a pending case. The same basic reasoning, that Constitutional rights are warped when a judge supplants a jury's decision, underlies the U.S. Sentencing Commission’s bipartisan proposal to curtail judges’ ability to consider acquitted conduct during sentencing. The practice has been almost universally condemned. Most sitting justices have questioned whether the practice is constitutionally sound. Yet, the Biden administration and the Justice Department are opposing the commission’s efforts, a position that does not square with President Biden’s forceful commitments to address racism in the justice system and reducing mass incarceration. Acquitted-conduct sentencing contributes to the "trial penalty"– the difference between sentences prosecutors offer in plea deals versus the much longer sentences often handed down after trial. It creates a dynamic where prosecutors overcharge because they can still urge a judge to sentence based on all charges, even rejected ones.