Acquitted Conduct Diatribe Flops Again

For years, the defense bar and legal academia have been pounding their chests about how grossly unconstitutional it is for a defendant to be sentenced in part based on conduct for which he was acquitted.  And as is often the mantra with these people, they are always on the cusp of victory (see, e.g., the constant chipper refrain that “the death penalty is dying” notwithstanding that the country has pretty steadily had an execution every 16 days for the last five years).

Today, the Supreme Court (without a single dissent so far as I can tell) rejected the latest effort to get it to ban district courts from basing sentencing on acquitted conduct, LUDWIKOWSKI V. UNITED STATES, No. 19-1293.

To someone who knows no law, it might indeed seem unfair that a defendant could be sentenced based on conduct for which the jury acquitted him.  But for everyone else, there is no puzzle here.  An acquittal does not mean “the defendant didn’t do it.”  It means only that the state failed to meet its burden of proof for conviction, to wit, that every element of the offense be proven beyond a reasonable doubt.  But that highest of all standards has never been applied to sentencing.  With a few exceptions not relevant here, the burden of proof at sentencing has always been a preponderance of the evidence.  It is therefore neither mysterious, nor unconstitutional, nor unfair, for the court to determine, by the standard appropriate to sentencing, that the defendant committed an act that for which the jury was unable to find him responsible by the markedly higher standard required for conviction.  See, for comparison, the OJ Simpson case, in which the criminal jury entered an acquittal but a civil jury found Simpson responsible for the murders and liable to the estates of the people he killed.

Not only is the existing state of sentencing law consistent with the Constitution, it’s also consistent with the relentless defense bar refrain (with which I largely agree) that the defendant’s sentence should be based on all the relevant facts about his life and behavior.  To the defense, this means all the good things about him  —  for example, that he loves his mother, played sports in school, and didn’t pull his first hold-up until he was almost 16.  But “all relevant facts” means “all relevant facts,” not just those that reflect well on him.  If he’s spent years as the neighborhood bully, constantly associates with drug pushers, and at age 27 has never held a job, those things too are relevant to how the sentencing court should view him.  But none of these quite illuminating facts is found, or has ever thought to be needed to be found, beyond a reasonable doubt.

The defendant’s cert petition in Ludwikowski is here.  The government’s brief in opposition is here.