Federal sentencing law is widely applied to punish offenders not only for offenses of which they have been convicted, but also, in the same proceedings, for offenses of which they have not been convicted. When convicted of at least one charge, a judge may consider relevant conduct in sentencing the defendant, and even increase the sentence for charges that were never charged. Scholars are split on the subject. On the one hand, some argue the use of relevant conduct at sentencing is often legitimate. Others object to the practice because “the addition of the relevant conduct result[s] in the identical punishment range which the defendant would have encountered had [they] been convicted on all counts.”
In October 2014, the Supreme Court declined to hear Jones v. United States, which would have addressed the issue. The National Law Journal summarized the facts as:
[A] District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, When U.S. District Judge Richard Roberts sentenced the three, he said he ‘saw clear evidence of a drug conspiracy,’ and sentenced Ball, Thurston, and Jones to 18, 16, and 15 years in prison respectively – four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to the filings with the Supreme Court.
Following the Court’s refusal, Justices Scalia, Thomas, and Ginsburg filed a dissent to the Court’s refusal to hear the Jones v. United States, saying:
“We have held that a substantively unreasonable penalty is illegal and must be set aside. … It unavoidably follows 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. It may not be found by a judge.”
So why did the Supreme Court decline to hear the case? Particularly, why did the other justice, the usually left-leaning justices, decline? One explanation is that on criminal justice cases, the Court doesn’t generally separate into the traditional right-left coalitions you might expect. Another explanation is that the facts of Jones were “too good” to be a vehicle for making a broad pronouncement on the issue. Margareth Etienne, a law professor at the University of Illinois, explained, “Jones involved a judge ignoring an acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of the plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.” Consequently, there appears to be a disjunction between the trial and sentencing stages that allows for the punishment of defendants for offenses of which they were never convicted or even charged, despite condemnation by some Justices and Sixth Amendment concerns.
For the prosecution, it appears that the elements of a crime may be lax or need not be met at all. Prosecutors may choose not to bring up charges because they lack sufficient evidence to prove all elements of a crime. However, their task may be merely to convince the judge that the context of the defendant’s conduct, relative to another offense he/she is convicted of, is sufficient to find that a crime has been committed, and not that the actual crime has been proven. For the defense, It may be necessary to not only deny the alleged charges, but also to contemplate the judge’s subjective thoughts on the defendant’s relevant conduct, and deny any charges that may arise thereby. This task seems impossible, and obviously favors the prosecution and punishment, in a country that already has the highest incarceration rate in the world. Ultimately, while the practice of sentencing without a conviction is not codified, it is nothing new and will likely continue until the Supreme Court sees another case like Jones to challenge the practice. That may take some time, and the Court may deny revisiting the issue, again. Until it does, the old adage “innocent until proven guilty” may have little practical meaning for people convicted of federal crimes.
Kyle Kemper
Staffer, Criminal Law Practitioner 
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