Acquitted Conduct Sentencing

In my last post I mentioned that Holmes could be sentenced more harshly than Balwani because the judge could take into account evidence from all the counts charged, even the ones of which she was acquitted. This practice seems unfair to some and is a recent controversy in legal circles. A recent editorial by the ultra-conservative Koch brothers’ organization urged the Supreme Court to make it illegal in the Osby case. The Supreme Court declined to hear the case and it remains legal in all twelve federal circuits.

The federal sentencing guidelines mandate that all relevant conduct proved at trial shall be considered by the sentencing judge. Proof need only be by a preponderance of the evidence and the sentencing judge is the one who determines that. So even if a jury finds that a crime wasn’t proved beyond a reasonable doubt doesn’t mean that it wasn’t proved by a preponderance of the evidence or that she didn’t do it. The Holmes case is a perfect example. One juror has said the jury acquitted her of the patient-related counts because they felt she didn’t intend to provide them false test results. But that’s not an element of the offense. To be guilty she only needed to have knowingly provided false statements on which the patients relied and which resulted in their harm. If the juror is right, then the jury misunderstood the instructions.

In broader terms, though, holding people responsible for foreseeable harm they cause is a long-held and standard practice in the law, and I believe rightly so. This is true in both criminal law and civil law. The felony murder rule is a good example. If person A conspires with person B to rob a bank and in the course of the robbery B murders someone, A is guilty of the murder too. This is true even though murder requires a mens rea, or guilty mental state, i.e. forming the intent to murder. B’s mens rea is considered adopted by A when they conspire.  In effect, the law is saying once you choose to commit a crime, you take responsibility for everything bad that happens, even if you didn’t intend it or personally do it, at least if a reasonable person could have anticipated the possibility.

On the civil side a good example is the eggshell skull rule. If person A punches person B in the stomach and B falls down and cracks his head open and dies or is rendered a paraplegic, A is civilly liable for the death and the medical expenses. This is true even if B had an unusually fragile skull and even if A was merely negligent in knocking him down. This applies generally to all torts. Even if A did not expect person B to die from a stomach punch, it is foreseeable that severe injury or death could result from being knocked down. In short, if you intentionally do a bad thing, you pay the price at law for the results. You take your chances on how bad it’s going to be. It’s a necessary policy to deter all bad conduct. It also would not be good policy to allow a defendant to escape punishment by claiming he or she “didn’t mean to.”

Another way of viewing it is to consider the established roles of judge and jury. Other than the death penalty in some sates, the jury is not a sentencing body; it is only a fact-finding body. The court, i,e. the judge, with help from the supporting staff (like U.S. Marshals in federal cases), decide the sentence and at least in federal cases must consider all relevant conduct. This could even include behavior during trial such as lying, disrupting proceedings, etc. that aren’t necessarily crimes, or at least not charged crimes. Sentencing is a judge’s prerogative and always has been.

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