After delivering Alabama’s Albritton lecture on November 16, former U.S. Supreme Court Justice John Paul Stevens was asked by an audience member to recall an opinion he had written of which he remained especially proud. Without hesitation, Justice Stevens referred to his dissent in United States v. Watts, where he had disagreed with the majority’s holding that federal courts may consider acquitted conduct when determining prison sentences under the Federal Sentencing Guidelines. Although the Guidelines have since been made advisory, they remain the rubric by which virtually all federal sentences are determined, and federal district judges continue to enhance sentences based on conduct never proven beyond a reasonable doubt.
This past summer, I had the opportunity to intern at the Federal Defender’s office in Montgomery, where I witnessed Sentencing Hearings for the first time. Families of defendants were often stunned at the degree to which Sentencing Hearings “looked like trials,” and how prison time could be enhanced based merely on whether the sentencing judge found that some alleged (often uncharged) conduct had probably occurred.
Unfortunately, the perception is accurate. After a defendant has been convicted of a crime in federal court, the sentencing judge may take into account a myriad of alleged acts unrelated to the charge on which the conviction was applied. The standard for finding guilt for sentencing purposes is preponderance of the evidence, and after taking evidence and arguments from the prosecution and defense, a single district judge issues a final decision as to guilt, as well as the conditions and length of the sentence imposed. The hearings usually concern conduct for which the U.S. Attorney could not acquire enough evidence to convict beyond a reasonable doubt, and in my limited experience, the evidence presented mostly included “he said, she said” testimony, with judges, more often than not, believing the person not wearing shackles. In Watts, Justice Stevens fought a losing battle, arguing that the proof beyond a reasonable doubt standard was the traditional norm enshrined in the Court’s constitutional jurisprudence, and as such, should be read into the sentencing guidelines.
Regardless of the constitutionality of modern sentencing standards, enhancing prison time for conduct not proven beyond a reasonable doubt is bad policy. While it is relatively easy to make philosophical or moral arguments against such a policy, perhaps the most obvious argument against it is considerably simpler. Money.
The official estimated cost of housing one federal prisoner for one month is just under $2,000. That estimate, however, is from 2001, and current levels are almost certainly higher. In 2006, over $68 billion was spent on corrections in the United States, and the overall prison population is now close to 2.3 million. That population continues to grow exponentially and represents the highest per capita prison population in the world. More than one of every hundred American adults is incarcerated.
Perhaps even more strikingly, only 7.9 % of federal prisoners are sentenced on convictions of violent crimes. This particular statistic is confirmed anecdotally by my own experience. Last summer, virtually every probation report that I looked at noted that there were “no identifiable victims” of the crime at issue. The convictions in the reports I saw often involved unlawful possession of narcotics or firearms; less often did they involve material harm to a human being.
A major cause of the extraordinarily high rate of incarceration in the United States has been traced to the length of prison sentences, and sentence length comes directly from the Federal Sentencing Guidelines. Aside from the fact that sentences in the United States tend to exceed sentences in other nations for the same or similar offenses, enhancements based on acquitted or unprosecuted conduct add even more time to already to severe sentences.
Adding to the already burdensome inclusivity of the Federal Sentencing Guidelines is the Armed Career Criminal Act (ACCA), by which federal prisoners convicted of three past “violent felonies” or “serious drug crimes” are automatically sentenced to a minimum of fifteen years. Speaking at Alabama in 2010, Chief Justice John Roberts openly criticized mandatory minimum sentences such as the ACCA as being bad policy.
Yet despite recognition of the problems inherent to the system, it remains largely intact. At least one source of the problem is the broad appeal that “tough-on-crime” political platforms convey, and legislators at the state and federal level continue to be successful running on such a message. It would be unheard of to run a “soft-on-crime” campaign, even knowing the financial benefits that a softer on sentencing policy would entail.
Although politicization of the issue may make the prospect for reform weak, at least some precedent exists to allow for change outside of legislative action. In 2005, the Supreme Court held in United States v. Booker that judges would no longer be required to sentence within the sentencing guidelines. Now, judges may make either upward or downward “variances” outside of the guidelines. This has opened the door to allow judges to consider character evidence, the overall impact that lengthy sentences have, and to make a downward departure from the guidelines without having to have a codified reason for doing so.
Booker also held that the original calculation of the maximum possible sentence must be based on facts either found by a jury beyond a reasonable doubt or admitted by the defendant. Effectively, this aspect of the holding caps the effect that acquitted conduct can have on a sentence by requiring that the maximum possible sentence corresponds to the convicted conduct.
Also, since the passage of the ACCA, the Supreme Court has had to clarify on several occasions whether particular state offenses qualified as “violent felonies” or “serious drug crimes,” and on many occasions the Court has held that crimes held by lower federal courts to meet those standards were not, in fact, “violent” or “serious.”
These holdings by the Court have had piecemeal impact on sentencing practice, but broader reform is still needed. Most Americans can quote the “reasonable doubt” standard from an early age, and many probably assume that people don’t go to prison except when that standard has been met. The Federal Sentencing Guidelines, however, make that assumption incomplete because federal inmates often stay in jail much longer because of alleged conduct never proven beyond a reasonable doubt. A heightened public awareness of the impact and expense of the guidelines would go a long way towards a much needed overhaul of U.S. practice.
United States v. Watts, 519 U.S. 148 (1997)
United States v. Booker, 543 U.S. 220 (2005)
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