“Innocent until proven guilty,” a fundamental constitutional right. We all know it, we’ve all heard it. If not in actual legal scenarios, then on one of the endless TV dramas featuring lawyers, cops, and legal proceedings. Even those who doubt the effectiveness of our legal system and law enforcement likely assume and take for granted the fundamentalness of this “right.” But what if I was to tell you that, when it comes to certain crimes at least, this fundamental right is not only disregarded, but tossed out the window altogether?

First, a disclaimer: I am not a legal scholar nor a trained lawyer. My reflections are drawn from personal experience, namely enduring the worst our legal system has to offer: targeting, convicting, and sentencing an innocent person. In my pursuit to understand and fight back against such an injustice, I’ve read numerous (but by no means, enough) legal briefs, appeal opinions, and legalese. I’m only beginning to crack the surface of an understanding of our legal system, and the more I find out, the more distressed I become.

The phenomenon is most commonly referred to as “acquitted-conduct sentencing” but more plainly, it refers to the use of conduct associated with acquitted (not guilty) counts in a jury trial in order to enhance a person’s sentencing of other, convicted counts. When it comes to jury trials, the highest evidentiary standard is required, “beyond a reasonable doubt.” That is, in order for a jury to find someone guilty, it needs to stand against the test that no reasonable person would have a reasonable amount of doubt as to the person’s guilt. To be sure, this can be a high bar to reach and, at times, it might seem as if the standard results in the guilty getting off instead of being properly punished. Yet the standard is set high for a reason. As Blackstone’s formulation has it, “It is better that ten guilty persons escape than that one innocent suffer.” The cornerstone of our legal system. The guilty should be punished. But in the exercise of justice, it is better to have failed to convict someone who is actually guilty than to accidentally submit an innocent person to unwarranted punishment.

So while “not guilty” verdicts do not necessarily indicate innocence – and our legal friends (judges, prosecutors, detectives) remind us repeatedly of this – our fundamental constitutional right of “innocent until proven guilty” comes into question as a result of the assumption and treatment of an acquittal as “unproven guilt.” While this treatment of an acquitted individual in this way happens in all kinds of ways, suffered by some whose lives and reputations continue to be marred by doubtful suspicion long after a trial has ended, the most egregious direct example of it is through the use of “acquitted-conduct sentencing.” In this situation, individuals who have been acquitted, during a trial by jury, of some but not all the charges lodged against them, are then assumed to have been guilty of those acquitted charges as well when being sentenced by a judge. If a jury has already determined the person to be not guilty of certain acts or conduct, why then, should a judge be allowed to use said conduct when sentencing that individual for other, convicted offenses? Does this not fly in the face of our constitutional right to a jury trial and the evidentiary standard of “beyond a reasonable doubt”?

While a jury is required to judge a person based on a high bar of evidentiary standard, a trial court judge, in making sentencing decisions, is allowed to use a much lesser standard: that is, one based on a “preponderance of the evidence.” In other words: it probably happened. It seems like it might have happened. Never mind that a jury ALREADY weighed in on the facts and evidence and decided it could not find the person guilty beyond a reasonable doubt. In a just society, a judge would be required to set aside said conduct and assign a sentence proportionally aligned with the convicted offenses. It’s true that sentencing guidelines and “offense variable” calculations can be quite complicated and vary by state. I’m only familiar (the tip of the iceberg familiar) with Michigan’s system. The complicated nature is designed to ensure that sentencing remains relatively consistent from one person to another and results in punishment based on the various elements and factors of a given crime.

To be fair, a “split verdict” of some guilty and some not guilty counts is likely not the norm and thus the unique dilemmas that face judges in their sentencing decisions of split verdict cases may not be often or even common occurrences (to this point, I have no idea how often this occurs), yet the acceptance and even determination of some judges to seek out the inclusion of acquitted offenses and conduct associated with those counts when sentencing is quite disturbing. My personal example, hopefully, is the extreme. What I witnessed was a judge seeking vengeance on behalf of a “victim” and throwing the book at a man convicted on only 2 of 6 counts. Her vengeance was particularly evident as she ranted about habitual criminal conduct, ones that were clearly encompassed within two of the acquitted counts. Not only did she make decisions on specific offense variables that added “points” under this logic, but she then used the same logic to “enhance” or increase his sentenced significantly beyond the sentencing guidelines within which his scoring fell. Ultimately, he was punished for those acts for which he was acquitted, truly “doing time for an acquitted crime” as Sterback puts it.

Now, I’m sure at least some readers are wondering, why should we care? The person was obviously guilty of SOMETHING so why should we care that he or she gets punished a little more than might otherwise happen if the system was actually fair and just? For one, our justice system was not designed to punish people who seem guilty of something. The fairness of some convictions not withstanding, punishment should be proportional to convicted crimes. No more, no less. If only it were that simple.

On the other side of the coin are those types of cases where the likelihood of imprisoning innocent people increases. In a system where some crimes are implicitly regarded by a “guilty until proven innocent” standard, where no physical or corroborating evidence is necessary above and beyond one person’s accusations, we should all fear for our freedom. Quite literally anyone can fall into a nightmare scenario where lives and families are literally shattered by one person’s accusations.

Certainly, I’m not denying the obvious: Some people actually are guilty, and maybe there’s little physical or corroborating evidence to prove some of those cases beyond a reasonable doubt. Maybe even most of those individuals are actually guilty. We may never know. What worries me is the manner in which Blackstone’s formulation becomes inverted for particular categories of crimes, as if it’s better to have 10 innocent persons suffer, than that one guilty escape. Our fear and “never again” fist-shaking blinds us to the reality of how easy it is for innocent people to fall into the legal trap that assumes guilt from the start. When you have a system that holds a self-proclaimed victim’s word above all else and allows legal proceedings and convictions based solely on that one person’s testimony what results is a witch hunt. A he-said-she-said trial. A credibility battle at it’s worst. How does an innocent person prove a negative, that something didn’t in fact happen when someone else says it did happen? What my family and I have learned is that you can’t. It does little good to point to contradictory statements or an absence of evidence or corroborating testimony. None of this is taken seriously. The burden of proof effectively shifts to the defendant, who must investigate and “explain” why someone would lie or fall into a trap of false memories. This is not how our system of justice was designed to function.

When a split verdict results from such a trial, where no evidence, no corroborating witnesses can point to evidence of guilt (beyond, perhaps, the man’s request for a lawyer upon hearing what he has been accused of), I would think automatic caution should be taken on the part of the judge in making sentencing decisions. Yet that’s exactly the opposite of what happened in this case. Instead, the judge acted as if she wanted to overturn the acquitted counts and elevated his sentence as much as she could accomplish given the legal limits she faced. Not only did she seem to want to overturn the acquittals, she ignored them altogether. Every single act described by the claimant was taken as fact, every single one, even those that seemed so illogical as to produce an abundance of doubt. Certainly the jury saw the doubt. But the jury’s decision mattered little to the judge in her quest for vengeance.

Innocent until proven guilty? Maybe. Depends on the case. In others: guilty until proven innocent. And even in those, a “not guilty” verdict can be entirely subverted by the judge during sentencing. Guilty until proven guilty. And it’s perfectly legal even as it seems like a blatant violation of a constitutional right. But don’t take my word for it, plenty has been written on the subject, as the list below demonstrates. Some states seem to have made tentative attempts to discontinue the practice of “acquitted-conduct sentencing.” In most cases, judges are allowed to continue superseding jury decisions in deciding that acquitted conduct did in fact take place and should be punishable. What then, is the purpose of a jury’s “fact-finding” duty? As Sterbeck notes:

“It is valid and true that an acquittal does not necessarily mean that a defendant is innocent. However, it is inconsistent and illogical to assert that the consideration of acquitted conduct can be used to enhance a sentence for a defendant that has been convicted of another charge, but cannot be considered at all to punish a defendant who has been acquitted of all charges against him. Our system is dependent upon the standard of proof “beyond a reasonable doubt” precisely because of the substantial stake of imprisonment and the risk of stripping the innocent of their liberty” (p. 1240).

What baffles me is the manner in which US Supreme Court and state courts like Michigan (in People v Lockridge, 2015) have ruled on “constitutional violations” pertaining to judicial fact-finding regarding mandatory minimum and maximum sentences. In this way, judicial fact-finding beyond what was submitted to and evaluated by a jury or beyond evidence presented by a defendant is seen as violating the Sixth Amendment right to a jury trial and cannot be used to necessarily increase a mandatory minimum or maximum sentence. In this case, Michigan’s Supreme Court ruled that :

“Michigan’s sentencing guidelines do so to the extent that the floor of the guidelines range compels a trial judge to impose a mandatory minimum sentence beyond that authorized by the jury verdict. Stated differently, to the extent that OVs scored on the basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e. the defendant’s “mandatory minimum” sentence, that procedure violates the Sixth Amendment” (p. 11).

But the law is a funny thing. While the constitutional violation is recognized in this case, the remedy is to ensure that “judicial fact-finding” is no longer a mandatory but an advisory concept. A lot can be learned from application, however, and in reviewing the manner in which the Michigan Court of Appeals has applied the Lockridge decision, it has in fact remanded cases for re-sentencing if it’s apparent that judicial fact-finding of this sort took place when calculating the variable scores. The case gets sent back to the trial judge who then has to either re-sentence the defendant or at least justify an existing sentence in a more satisfactory manner. So, at least when it comes to minimum and maximum sentencing and offense variable scoring, judicial fact-finding is now questioned on constitutional (and sometimes evidentiary) grounds.

Indeed, this judicial fact-finding issue has also presented itself in cases involving inflated restitution based on uncharged conduct. As the decision in People v McKinley (2015) states:

“Only crimes for which a defendant is charged “cause” or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of conduct” to the convicted offenses and requires a causal link between them. It follows directly from this premise that any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution against a defendant. Stated differently, while conduct for which a defendant is criminally charged and convicted is necessarily part of the “course of conduct that gives rise to the conviction,” the opposite is also true; conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction” (p. 8).

Restitution, it should be pointed out, is another form of punishment and in the state of Michigan, a mandatory addition to a jail, prison, or probation sentence. What the logic above tells me is that judges are not allowed to rely on uncharged conduct (which implicitly refers to both conduct not evaluated by a jury as well as conduct associated with acquittals) when assessing restitution. This is consistent with previously mentioned decisions regarding mandatory minimum and maximum sentencing handed down by a trial judge.

If this logic applies to sentencing guidelines calculations and assessment of restitution, why then is it perfectly legal for a judge to justify enhancing a person’s sentence above and beyond the calculated sentencing guidelines based on conduct associated with acquittals? In my personal example, the judge ordered four additional years of imprisonment above and beyond what was called for by the sentencing guidelines (which were themselves inflated by taking into consideration acquitted conduct). Four more years of time that will never be recovered. Four more years of his child’s life he’ll be absent from. Four more years of lost wages. Four additional years added solely on the grounds of conduct for which he was acquitted. Someone who walks away from a jury trial with acquittals on all counts does not suffer imprisonment based on a trial judge’s disagreement with the jury verdict, why should it be that way in a split verdict case? How is this justifiable or in any way just?

See also:

• Eang Ngov (2009), “Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing”
• Orhun Hakan Yalinҫak (2014) “Critical Analysis of Acquitted Conduct Sentencing in the U.S.: “Kafka-esque,” “Repugnant,” “Uniquely Malevolent” and “Pernicious”?
• Fully Informed Jury Association, Judges Circumvent Jury Verdicts with Sentencing for Acquitted Conduct
• Leonard & Dieter (2012), “Punishment Without Conviction: Controlling the Use of Unconvicted Conduct in Federal Sentencing”
• Life of the Law (2014), “In Supreme Court News: Acquitted By A Jury? The Judge Can Sentence You Anyway.”
• Rody et al. (2016), “A Current Perspective on the Sixth Amendment and Acquitted-Conduct Sentencing”