Orrin Hatch is the senior member of the Senate Judiciary Committee.

A focus of many, including myself, in evaluating Judge Brett Kavanaugh’s judicial record and philosophy has been his opinions, both judicial and academic, on the constitutional separation of powers. And rightly so, as a demonstrate commitment to our constitutional structure should be a prerequisite for anyone nominated to the Supreme Court.

But the Supreme Court’s docket is not limited to broad structural questions, however important they may be, and neither is that of the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants. One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury. It’s a practice as outrageous as it sounds.

Imagine that you’re a defense attorney. Your client, Antwuan Ball, was charged with distributing a few grams of crack cocaine in addition to conspiring with an extensive network of crack dealers. You know your client is small-time and hadn’t gotten caught up with the crime ring, and you fight to get him off. After a drawn-out trial, where you blast the prosecution for failing to present any definitive proof of conspiracy, you sit next to your nervous client and wait for the jury to announce his fate. Twelve men and women file into the courtroom. You hold your breath as the foreman announces Ball guilty of individually distributing crack. You look at your client, but his face is buried in his hands. Conviction on the distribution count will probably lead to a few years in prison, but the conspiracy charge carries a much longer sentence. What will the jury say? “Not guilty, your Honor.” Acquittal! This time, your client looks at you, tears of relief in his eyes. The jury simply didn’t believe, beyond a reasonable doubt, that your client was a conspirator.

​You tell your client to be optimistic about his sentence. The judge can only punish him for the few grams he distributed himself because the jury acquitted him of conspiracy. That turns out to be false comfort: The jury’s acquittal is little more than a speed bump at sentencing. The judge finds, using the lower preponderance-of-the-evidence standard that applies at sentencing, that your client played a role in the conspiracy and holds him responsible for distributing over 500 grams of crack. He sets the sentence at nearly 20 years — more than a decade longer than he would have faced for the sole distribution charge the jury convicted him of.

​Ball, whose story is real, was punished for committing a crime that the jury found there was at least reasonable doubt he did not commit. I think that’s a problem, and so does Kavanaugh.

​A brief aside on the history of federal sentencing law is appropriate to understand how it is that acquitted conduct can be considered at sentencing, and why this practice is constitutionally suspect. The Fifth and Sixth Amendments, which guarantee “due process of law” and the right to a jury trial for the criminally accused, respectively, are the foundation of our criminal justice system. Together, they protect defendants from conviction unless found guilty, beyond a reasonable doubt, by an impartial jury. As Alexander Hamilton wrote in Federalist No. 83, juries prevent “arbitrary punishments upon arbitrary convictions [that] have ever appeared to me to be the great engines of judicial despotism . . . .” Justice depends on conviction by a jury, not a judge.

Once convicted, however, a defendant’s sentence is generally up to the judge, not the jury. Historically, statutes set out broad sentencing ranges that left the judge free to choose a sentence that suited the defendant’s individual circumstances. Judicial discretion to sentence defendants within those statutory ranges has ebbed and flowed in recent decades, most notably with the establishment of the mandatory Sentencing Guidelines in 1987 and the Supreme Court’s 2005 ruling in United States v. Booker that made those Guidelines advisory, not binding.

A constant in federal sentencing over the years — both before and since the Guidelines went into effect — is the standard of proof that applies to the judge at sentencing. While the reasonable-doubt standard applies to factual findings made by a jury at the guilt stage of a criminal prosecution, the lower preponderance-of-the-evidence standard applies to factual findings made at the sentencing stage of a criminal case.

The difference in those standards of proof means that a sentencing court can consider acquitted conduct. Under 18 U.S.C. § 3661, Supreme Court precedent, and the Sentencing Guidelines, a judge is free to consider a wide range of relevant conduct for the purpose of determining an appropriate sentence. Relevant conduct can include evidence that a defendant has committed other crimes, including the very crimes for which a jury acquitted the defendant. Like other factual findings at sentencing, the judge must simply find by a preponderance of the evidence that the defendant has committed the crime that the jury acquitted him of.

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment.

The bottom line is that defendants like Ball can be punished for doing something that the jury isn’t sure they did. Even though a defendant can’t be convicted for that conduct, the ties between crime and punishment must be tight to be fair. In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge. Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice. Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”

In 2015, Kavanaugh wrote separately to build on Judge Patricia Millett’s excoriation of the acquitted-conduct doctrine. In his customary clear prose, he explained that the law allows “a judge [to] impose a sentence higher than the sentence the judge would have imposed absent consideration of…acquitted conduct.” To point out the constitutional paradox, he asked why, if a defendant may have a right to “have a jury find beyond a reasonable doubt the facts that make [him] guilty [and] receive[d], for example, a five-year sentence, why [doesn’t he] have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?” ​

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct. Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound—and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness—Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”

Bound by current law, Kavanaugh joined the opinion that upheld Ball’s sentence. Ball asked the Supreme Court for review, but his request was denied after only three justices voted to grant certiorari. Justices Clarence Thomas and Ruth Bader Ginsburg joined Justice Antonin Scalia’s acerbic dissent, which noted that the only reason Ball received such a long sentence was the judge’s finding that he was a co-conspirator. Of course, that was the very finding the jury had rejected at trial. And it would appear to be at odds with Supreme Court precedent 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.” As Scalia wrote, “This has gone on long enough.” Indeed.

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct. But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law. I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.” The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do. It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct. However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

Recommended Citation: Sen. Hatch , Judge Kavanaugh’s fight for stronger jury rights, SCOTUSblog (Aug. 31, 2018, 12:24 PM), https://www.scotusblog.com/2018/08/judge-kavanaughs-fight-for-stronger-jury-rights/