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ON THE DEFENSIVE: Not guilty? Not so fast

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Every defendant convicted of a crime in federal court must confront the federal sentencing guidelines.

These guidelines produce an advisory sentencing range for each defendant by assessing the defendant’s prior criminal record combined with the severity of the current criminal offense. Since 2005, in the landmark decision of United States v. Booker, the guidelines have been advisory, such that courts are generally free to depart upward or downward depending on the characteristics of the defendant and the facts of a given case.

While many sentences are now below guideline, one consequence of the Booker decision is that above-guideline sentences are now imposed at nearly double the rate that they were before Booker.

A frightening way in which courts justify above-guideline sentences is through a process known as “acquitted conduct sentencing.” This process lets judges elevate a guideline range based on conduct that the jury acquitted the defendant of.

The U.S. Supreme Court has held that acquitted conduct may be considered at sentencing as long as that conduct has been proved by a “preponderance of the evidence.” This is, of course, a much lower, and therefore easier, burden to meet than the high standard of “beyond a reasonable doubt.”

This practice is playing out right now in the Eastern District of Wisconsin in the “Pizza Man” case. A jury acquitted Feras Rahman of various charges, including arson, but convicted him on a separate obstructing charge for lying about the location of a computer that was never destroyed in the blaze.

At sentencing, federal prosecutors convinced Judge Rudolph Randa that Rahman bears responsibility for the arson under a preponderance of the evidence standard. Consequently, the court sentenced him to 2 1/2 years in prison.

This practice occurs in other contexts too.

Imagine a defendant who is charged with four bank robberies in federal court. The defendant goes to trial, and the jury returns not guilty verdicts on three of those robberies.

If the judge simply disagrees with the jury or believes the prosecutors have proven those other three robberies by a preponderance, then the judge can elevate the guideline range and set a sentence as if the defendant had committed all four robberies.

The right to a trial by jury is sacrosanct and should neither be eroded nor disturbed.

The practice of acquitted conduct sentencing is anathema to the Constitution. It is an offensive practice that must be abolished either through Supreme Court review or an overhaul of the federal sentencing guidelines.

One comment

  1. Anyone who thnks wisconsin gop controlled courts are to liberal with sentencing is a flake and very squirrelly. facts show wisconsin is number one in the WORLD in extreme sentencing. wisconsin is known for it`s wrongful convictions because you are guilty until proven innocent mentallity of our perverted judges. This article is a fake right wing propaganda nothing more nothing less. In wisconsin you can serve a decade in a jail for a library fine.

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