New bill would create Digital Privacy Agency to enforce privacy rights

Congress is taking yet another stab at addressing the near-complete lack of federal laws covering the absolutely massive trove of data that companies now collect on every one of us, which forms the backbone of basically the entire big tech era.

Representatives Anna Eshoo and Zoe Lofgren, both Democrats from California, introduced the Online Privacy Act today. The act would create a new federal agency, the Digital Privacy Agency, to enforce privacy rights. The act would also authorize the agency to hire up to 1,600 employees.

“Every American is vulnerable to privacy violations with few tools to defend themselves. Too often, our private information online is stolen, abused, used for profit, or grossly mishandled,” Eshoo said in a statement. “Our legislation ensures that every American has control over their own data, companies are held accountable, and the government provides tough but fair oversight.”

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November 5, 2019 at 05:17PM

Lawyer practiced for 17 years despite suspension, disciplinary board says

The Pennsylvania Supreme Court has disbarred a lawyer who was suspended 17 years ago but allegedly continued to practice law.

Its disciplinary board found Oct. 31 that Northumberland County lawyer Jason Michael Purcell deceived the public and had a “contemptuous attitude towards his professional responsibilities,” the Patriot-News reports.

Purcell was suspended Dec. 1, 2002, for failing to pay his annual attorney registration fee, but he continued to claim that he was a practicing attorney through social media, the board said. On LinkedIn, he touted “having 15-plus years of diverse legal experience” and said he was licensed to practice in California, Maryland, New York, Pennsylvania and the District of Columbia.

Purcell falsely claimed that he held several jobs in the legal field, including working as in-house counsel and an associate broker for a private boutique real estate firm in New York from 2012 to 2017, the board said.

The board also said Purcell appeared as counsel in a drunken driving case and custody matter in 2005, worked as counsel of record in a drug case and helped prepare a petition to recanvass voting machines in 2006, and represented an individual in a protection from abuse matter in 2018.

In the 2018 matter, the board said Purcell told the judge that he had been reinstated but failed to produce the letter proving his reinstatement.

“During his lengthy period of administrative suspension, respondent engaged in serious professional misconduct by continuing to hold himself out to the public as an active member of the Pennsylvania Bar and representing clients in at least five legal matters in the Commonwealth of Pennsylvania,” the board wrote in its opinion.

The board noted that Purcell has failed to respond to these charges and did not appear at his disciplinary hearing.

The board also contended that Purcell has a criminal history, in which he has been convicted twice of driving under the influence of alcohol. In 2006, he was charged with his third DUI but failed to appear in court.

The Patriot-News reports that Purcell pleaded guilty in May and was sentenced to 10 days to 18 months in prison.

By Amanda Robert

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November 5, 2019 at 05:39PM

Florida Cop Under Investigation for Leaking to Newspaper

Police in the Fort Lauderdale, Fl., suburb of Sunrise are weighing whether to charge a sergeant with a felony, not for excessive force or off-the-job misconduct— but for spilling confidential information to the news media, reports the Sun-Sentinel.

The investigation became public in September, when police executed search warrants suspecting Sgt. Roger Krege of providing the South Florida Sun Sentinel in 2014 with, among other things, a list of confidential informants used in dozens of drug cases.

“That is not something you see often,” said Jim Mulvaney, an adjunct professor in the law and police science department at the John Jay College of Criminal Justice in New York, specializing in law and police science.

“Internal affairs investigations are fairly common, but leaks don’t usually trigger criminal investigations.”

The timing coincides with a Sun Sentinel investigation called “Cops, Cash and Cocaine,” which outlined how the police department used confidential informants to lure drug buyers into the city. Once the arrests were made, police were able to seize the buyers’ money and often their vehicles, resulting in huge paydays for the officers working overtime and for the informants.

The article showed the newspaper knew the location of the department’s “Vice, Intelligence and Narcotics” unit, which forced Sunrise to move the office. The article did not disclose the name of any confidential informant.

Sunrise Lt. Brian Katz said the leak was taken seriously because it put other members of the force in danger.

“The exposure and illegal copying of the (list) put every confidential informant in grave danger and threatened the personal safety of every detective working in the Vice, Intelligence and Narcotics unit and working with the confidential informants,” said Katz.

In Florida, the charge of “disclosure or use of confidential criminal justice information” is a third-degree felony, punishable by a maximum of five years in prison. The law was passed in 2003.

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November 5, 2019 at 11:16AM

Broward Sheriff’s Deputy Arrested After Throwing Girl To Floor By Her Neck

A Florida sheriff’s deputy assigned to a school was arrested and charged with felony child abuse after he was caught on video grabbing a 15-year-old girl by the neck and slamming her to the floor.

Broward County Sheriff’s Deputy Willard Miller, 38, surrendered to authorities on Tuesday and was released on $5,000 bond to await trial. If convicted, he faces up to five years in prison.

Miller was working as a school resource officer for Cross Creek School in Pompano Beach on Sept. 25 when surveillance video captured his violent interaction with the female student. The school, about 35 miles north of Miami, serves emotionally and behaviorally disabled students from kindergarten through 12th grade.

A judge allowed Willard Miller to be freed on a $5,000 bond to await trial on a felony child abuse charge. 

CBS Miami

A judge allowed Willard Miller to be freed on a $5,000 bond to await trial on a felony child abuse charge. 

In the video, released by the sheriff’s office, the girl can be seen tapping Miller’s leg with her foot moments before he grabs her by the neck with both his hands and throws her to the floor.

Then he’s seen flipping her over, putting his knee in her back and handcuffing her. The video shows him then pushing her through a doorway, causing her to hit a wall.

The student doesn’t appear to have been seriously hurt. Miller was charged under a child abuse law that specifies “without great bodily harm.”

Miller was removed from his position at the school and placed on administrative leave on Sept. 27. He was suspended without pay on Oct. 28.

Broward County Sheriff Gregory Tony called Miller’s actions “deplorable” during a news conference Tuesday. He applauded school district officials for alerting the sheriff’s office to the deputy’s misconduct.

“It’s embarrassing, OK, when we have one individual that acts outside the confines of the oath that they take, it goes on every news channel, it spreads across the country,” Tony said.

“I’m tired of it,” he continued. “I’m going to fix it and I’m going to hold people accountable.”

Miller’s arrest follows several accusations against  Broward County Sheriff’s Office related to excessive force. A deputy was fired last week for punching a handcuffed man in a hospital bed in January.

Two other deputies are awaiting trial on misdemeanor charges of battery and falsifying police reports after a teen was pepper-sprayed and his head was slammed into the ground outside a McDonald’s in April.

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November 6, 2019 at 11:41AM

Pre-Arrest Diversion: Where You Live Can Determine Whether You Go to Jail

Alternatives to detention are now widely available across the U.S. to justice-involved individuals who pose no risk to public safety. But a new survey shows that how they are implemented and who benefits from them can depend on a “stunning variety” of state statutes and practices.

The study, based on a 50-state survey by the R Street Institute, a Washington, D.C.-based policy think tank, examines how the most common pre-arrest diversion strategies aimed at helping individuals who come into contact with police as a result of mental health or substance abuse issues avoid becoming entrapped in the justice system work in practice.

Until relatively recently, whether someone was arrested for a serious offense or a simple violation of an ordinance, it could set in a motion “a criminal process that exhibits at times all of the control and potential for danger as a runaway locomotive,” the study said.

Not only can it set an individual on a path towards being permanently branded in the justice system, but it can require arresting officers to spend hours transporting and processing individuals who pose little or no threat to the community.

“While arrest is warranted for many of the more serious transgressions, it is an ill-fitting and disproportionate response to myriad other situations,” said the study. “Yet traditionally, the only other option officially available to officers is to do nothing.”

Nevertheless, even though a rich menu of alternatives is now available to law enforcement and first responders, differences in state laws governing so-called “crisis responses,” as well as funding constraints, mean that an individual’s chances of avoiding entrapment in the justice system—and thereby increasing the odds of recidivism or further harm—can depend on where he or she lives, or on how the different strategies are administered, the survey found.

“Although (pre-arrest diversion) strategies are often locally designed and implemented, they do not operate in a legal or political vacuum,” wrote the survey authors.

“Instead, localities are subject to a web of state laws and regulations that directly bear on their ability to institute pre-arrest diversion and other crisis response strategies effectively.”

Differences or gaps in state regulations can determine whether someone experiencing an opioid overdose, ends up in jail or a treatment center, according to the study.

map

Map courtesy R Street Institute. See study for additional interactive maps

For example, while 41 states allow police to take into “protective custody” (instead of arresting them) individuals suffering from an alcohol abuse episode, just 27 have similar provisions for individuals impaired by other drugs, such as opioids.

Protective custody allows police, working in partnership with first-responders, to divert affected individuals to mental health or counseling centers, instead of detaining them for criminal processing. In some cases, it can also empower first-responders on the scene to take immediate action rather than contact law enforcement.

Transforming Justice

The ability to delineate alternative scenarios for responding to troubled individuals represents a landmark transformation of the traditional justice system in many communities.

It’s now well-recognized that “criminal charges can distract from and exacerbate health issues, while a potentially months-long commitment may be inappropriate for many individuals who only need temporary assistance,” the study said.

jonathan haggerty

Jonathan Haggerty

But the authors, Lars Trautman and Jonathan Haggerty, both senior fellows of criminal justice and civil liberties policy at the R Street Institute, said that even within those jurisdictions allowing protective custody, there are wide differences in the amount of discretion allowed authorities.

Another key factor is the availability of alternatives in each community. In just 23 states, officials are “required” to take individuals to non-correctional facilities such as detoxification centers or hospitals. But sometimes such facilities are either too far away, or are simply unavailable for lack of sufficent funding.

Some 19 jurisdictions allow a jail or police station to be used as the location of first resort for “protective custody,” while another 14 do so only if health or crisis facilities are unavailable.

Changes in state legislation, as well as increased funding for non-jail alternatives, could correct the differences in responses, the authors said.

“Just as pressing, but practically more difficult, is the elimination of other jails and correctional institutions as possible detention sites whenever feasible,” they added. “An individual in protective custody is suffering from a health crisis, not a criminal one.”

Avoiding Arrest

The study similarly compared how states are using four other diversion strategies that have become broadly accepted in the justice community:

      • Emergency medical health holds which authorize first responders take an individual experiencing a mental health crisis into a form of civil custody in order for them to be evaluated by appropriate mental health or medical personnel;
      • Citations which permit or require law enforcement officers by statute to issue a citation to individuals alleged to have committed certain specified offenses, instead of placing them under arrest, booking or detaining them;
      • Good Samaritan laws which offer immunity from arrest, criminal charges, prosecution or conviction for limited, drug-related offenses to individuals who call for assistance for someone experiencing a suspected overdose;
      • Ambulance Transport that can require emergency medical service personnel to take an individual experiencing a crisis to a hospital emergency room, or require police to contact emergency medical technicians rather than bring the individual to jail for booking.

New Mexico passed the first Good Samaritan law in 2007, and similar laws now operate in 47 states and the District of Columbia. They corrected a serious gap in treatment, since many individuals who might otherwise be the first to become aware of a crisis experienced by a relative or friend feared notifying police because they risked being charged with possession of drugs or drug paraphernalia.

But “the near universal adoption of these laws in so short a period, however, should not be confused with unanimity of support,” the authors observed, noting that resistance from “tough on crime” legislators has delayed implementation or watered down the legislation in many states.

In Maine, for example, Republican Gov. Paul LePage vetoed a Good Samaritan bill twice in 2013 and 2017, arguing that it would encourage drug use. ”It was only after he left office in 2019 that Maine managed to enact a Good Samaritan law,” the study said.

The laws ran into similar political headwinds from then-Republican governors in Texas, California and New Jersey.

But at the same time, some strategies favored by local sheriffs, such as “emergency mental health holds” for mental health crises, have run into opposition from criminal defense lawyers and mental health advocates.

In Kansas, the local chapter of Mental Health America opposed efforts to make it easier to hold individuals against their will based on mental illness, on the grounds of protection of privacy.

Lars Trautman

Lars Trautman

The authors said their comprehensive analysis of pre-arrest diversion strategies shows they are “increasingly popular” at the local level; but while the trend across many states has been to continue to expand their range, the “stunning variety of statutory permutations” has led to gaps and variations in the implementation of each policy tool.

“The success of local diversion will turn not just on whether state policy changes, but how,” the authors said.

The authors argued that further research of those gaps is crucial to developing strategies that can work for all Americans wherever they live.

The survey of the differences they discovered should be considered a “map of areas of improvement as well as a source of inspiration,” the study said.

“No state may have yet figured out how to create the most conducive environment possible for pre-arrest diversion and crisis response, but in their divergent approaches they present a wealth of promising options.”

The full study can be downloaded here.

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November 5, 2019 at 08:05AM

‘Game Changer’: Florida Judge Allows Cops to Search DNA Database

In what some are calling a “game changer,” a Florida detective has obtained a warrant to penetrate GEDmatch and search its full database of more than one million users.

Experts said this appeared to be the first time a judge had approved such a warrant, and that the development could have profound implications for genetic privacy, the New York Times reports.

The disclosure, made at the recent International Association of Chiefs of Police convention, adds a new wrinkle to the controversy surrounding law enforcement access to  consumer DNA sites that currently contain genetic profiles for over  20 million people.

Police in some jurisdictions have already used it to solve cases both new and cold. But criticism has added to the pressure on the two largest sites, Ancestry.com and 23andMe, keep their users’ genetic information private. A smaller one, GEDmatch, severely restricted police access  this year, but that may be changing.

“The company made a decision to keep law enforcement out, and that’s been overridden by a court. It’s a signal that no genetic information can be safe.” said New York University law Prof. Erin Murphy. “That’s a huge game-changer.”

Fears that DNA tracing could falsely implicate innocent people—even relatives who never provided samples of their DNA—appear to have prodded the company into introducing new terms of service that required users to consent in advance to have their information available to law enforcement.

The company, which holds 1.2 million profiles in its database  has changed all its profiles to the “opt out” mode, meaning police have access to only those profiles whose users logged on and voluntarily selected to “opt in” and share their DNA, The Daily Beast reported.

But the latest development was likely to encourage other agencies to request search warrants from 23andMe, with 10 million users, and Ancestry.com, with 15 million.

The Florida decision could affect not only the users of these sites but huge swaths of the population, including those who have never taken a DNA test. That’s because the forensic technique makes it possible to identify a DNA profile through distant family relationships.

Using public genealogy sites to crack cold cases had its breakthrough moment in April 2018, when California police used GEDmatch to identify a man they believe is the Golden State Killer, Joseph James DeAngelo.

After that, dozens of law enforcement agencies rushed to apply the method to their own cases. Investigators have used genetic genealogy to identify suspects and victims in 70 cases of murder, sexual assault and burglary.

Additional Reading:  Debate Grows Over Allowing Police to See DNA Data Stored by Genealogy Firms, The Crime Report, Aug. 23, 2019

Privacy & Policing: Does Your DNA Need a Lawyer?, The Crime Report, May 6, 2019

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November 6, 2019 at 11:29AM

Prosecutors May Get Trump Tax Returns, Court Rules

President Donald Trump’s accounting firm must turn over eight years of his personal and corporate tax returns to Manhattan prosecutors, a federal appeals court ruled on Monday. It was a major setback for the president’s attempt to keep his financial records private. A three-judge appeals panel did not take a position on the president’s biggest argument — that he was immune from all criminal investigations, the New York Times reports. A lower court called that argument “repugnant to the nation’s governmental structure and constitutional values.” The appeals court said the accounting firm, not  Trump himself, was subpoenaed for the documents, so it did not matter whether presidents have immunity.

The tax returns are not likely to be handed over soon. Trump has fought vigorously to shield his financial records, and the case appears headed to the Supreme Court. The legal fight began in August after Manhattan District Attorney Cyrus Vance, a Democrat, subpoenaed Trump’s accounting firm, Mazars USA, for his tax returns and those of his family business dating to 2011. Prosecutors are investigating the role of the president and his business in hush-money payments made to two women just before the 2016 presidential election. The office sought the records in connection with an investigation into whether New York laws were broken when Trump and the Trump Organization reimbursed his former lawyer and fixer, Michael Cohen, for payments he made to the adult film actress Stormy Daniels, who claimed she had an affair with Trump. Trump’s lawyers sued to block the subpoena, saying a criminal investigation of the president was unconstitutional. They pointed to impeachment as the correct way to address wrongdoing by a president.

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November 4, 2019 at 11:33AM

Prosecutors tossed from drug case after witness is used to record defense lawyer

A New Jersey appeals court has tossed prosecutors from a drug case because detectives wired a witness and sent him to record the criminal defense lawyer who had requested a pretrial interview.

The court of appeals removed Middlesex County prosecutors from the case because they apparently reviewed the recording. Law360 and NJ.com have coverage.

In the Oct. 29 decision, the appeals court asked the New Jersey attorney general’s office to assign the case to prosecutors who had no access to the recording and transcript. The appeals court said the new prosecutors in the drug case should work for the state attorney general or a different county prosecutor.

A Middlesex County prosecutor authorized the wiretap, although it’s not clear whether the prosecutor knew the target was a lawyer, according to the opinion. But the prosecutor in the drug case evidently obtained the recording and transcript, the appeals court said.

“The defense attorney’s interview may as well have been conducted with the narcotics prosecutor hiding in the closet,” according to the appeals court.

“If the roles were reversed and the defense had surreptitiously recorded a prosecutor’s pretrial interview of an anticipated trial witness, the state would surely be sounding the alarm, and contending its work product had been unfairly obtained.”

Detectives had asked the witness to record the meeting with lawyer Joseph Mazraani because the witness—who was also a government informant—said Mazraani might want to offer him some money. The witness was accused of buying drugs from Mazraani’s client.

The witness said he was told of the possible bribe by his former lawyer, whom Mazraani had called to arrange the interview. The witness’s former lawyer has since been charged with witness tampering in three cases that are unrelated to Mazraani or the drug defendant.

The informant received $180 to cover lost wages for wearing the wire and attending the meeting with Mazraani. No bribe was offered.

Mazraani says he never knew the meeting was recorded until the information was provided in discovery materials three days before his drug client’s trial. He sought to get his drug client’s drug case dismissed and appealed when the trial judge turned him down.

The appeals court refused to dismiss the case but said the state erred by allowing the prosecutor handling the drug case to access “the fruits of the surreptitious taping.”

“Because of that failure, and because attorney work product from the recorded interview was prejudicially divulged to the narcotics prosecutor and staff, the narcotics case must be transferred,” the appeals court said.

The appeals court said the trial judge should conduct a hearing on remand to determine whether the witness may have been unfairly coached or influenced when prosecutors prepared him for the taping or in his debriefing afterward. Depending on the findings, the witness may need to be excluded from trial, the appeals court said.

By Debra Cassens Weiss

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November 1, 2019 at 02:17PM

Many Drunk Driving Test Devices Are Inaccurate

A million Americans a year are arrested for drunken driving each hear, mostly involving blowing into a device estimates the concentration of alcohol in their blood. If the level is 0.08 or higher, they are all but certain to be convicted. Those tests often are unreliable, the New York Times reports. The technology generates skewed results with alarming frequency, even though they are marketed as precise to the third decimal place. Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past year, largely because of human errors and lax governmental oversight. Across the U.S., thousands of other tests have been invalidated in recent years.

The machines are sensitive instruments. Many haven’t been properly calibrated, yielding results that up to 40 percent too high. Maintaining machines is up to police departments that may have shoddy standards and lack expertise. Some lab officials have used stale or home-brewed chemical solutions that warped results. Experts have found serious programming mistakes in the machines’ software. States have devices that their own experts didn’t trust and have disabled safeguards meant to ensure the tests’ accuracy. A Pennsylvania judge called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. Local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.” Some industry veterans say the machines should not be arbiters of guilt. “The tests were never meant to be used that way,” said John Fusco, who ran National Patent Analytical Systems, a maker of breath-testing devices. Tests from portable machines are not admissible in court in most states. They often trigger an arrest, which leads to a test on another machine at the police station. That result determines whether someone is charged.

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November 3, 2019 at 11:56AM

Acquitted Conduct Should Not Be Considered At Sentencing

John Adams famously declared, “Representative government and trial
by jury are the heart and lungs of liberty.” Indeed, given the role the jury trial plays in our modern criminal justice system.

The jury trial was designed as an indispensable structural check on government. A safeguard the framers of the Constitution considered so paramount to a free people that it was enshrined in the Sixth Amendment.

Trial by jury is essential to preserving liberty because it protects individuals from arbitrary use of government power by allowing the people to act independently of the state. Accordingly, upholding the people’s role in the administration of justice is foundational to upholding the purpose of this procedural guarantee.

Against this background, U.S. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, recently introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill seeks to address the insidious practice known as acquitted conduct sentencing, wherein a judge enhances a sentence based on conduct underlying charges for which a defendant has been acquitted by a jury.

You read that correctly. Under current law, federal judges are permitted to sentence individuals based on charges for which a jury found them not guilty.

This is how the practice developed through federal sentencing law.

Our Constitution guarantees the presumption of innocence until the government proves guilt beyond a reasonable doubt. Once a defendant has been duly convicted by a jury, however, sentencing is generally a matter of judicial determination.

The evidentiary standards at sentencing are lower compared to the guilt-innocence phase, and, per 18 U.S.C. Section 3661, Congress barred any limitation on the conduct sentencing courts may consider in imposing punishment. In United States v. Watts, the

U.S. Supreme Court

held that the consideration of acquitted conduct by a preponderance-of-the-evidence standard at sentencing did not violate the double jeopardy clause.

Congress enacted the Sentencing Reform Act to curtail inconsistency and unpredictability in sentencing that had been exacerbated by the broad discretion afforded judges working within statutory ranges. This act eventually spawned the federal sentencing guidelines, which are designed to facilitate uniformity by providing formulaic procedures to calculate a sentence based on consideration of “relevant conduct” and the jury’s verdict.

In other words, the idea is to impose more individualized sentences by considering more factors. In United States v. Booker, the Supreme Court held that, while the guidelines are advisory as opposed to binding, the Sentencing Reform Act requires judges to consider the guidelines during sentencing.

Lower standards of proof at sentencing — in conjunction with 18 U.S.C. Section 3661, legal precedent and application of the guidelines — means that federal judges may consider a wide array of relevant conduct in determining a defendant’s sentence, including conduct for which underlying charges have been acquitted by a jury. While the Supreme Court determined acquitted-conduct sentencing did not violate the double jeopardy clause in Watts, the court has never addressed whether the Sixth Amendment right to a trial jury prohibits the practice.

Jones v. United States is a focal case, both for its fact pattern and the late Justice Antonin Scalia’s dissent from denial of certiorari. In Jones, the defendants faced two charges: (1) distributing a small amount of drugs and (2) conspiring to distribute a large amount of drugs.

The jury convicted on the distribution charges, but the defendants were acquitted of conspiring to distribute. Despite the jury’s acquittal, the sentencing judge found the defendants engaged in the conspiracy by a simple preponderance of the evidence and imposed significantly longer sentences based on this finding of fact.

Had the judge not overridden the jury acquittal for the conspiracy charge, the three defendants would have served 27 to 71 months for distributing in accordance with the guidelines. Instead, they were respectively sentenced to 180, 194 and 225 months — calculations based largely upon conduct the government tried, but failed, to prove beyond a reasonable doubt.

The Supreme Court declined to review Jones, but Justice Scalia — joined by Justices Clarence Thomas and Ruth Bader Ginsburg (quite a rare coalition) — penned a dissent from denial of certiorari that outlined the fundamental flaws with acquitted-conduct sentencing.

Together, the dissent argued, the Fifth and Sixth Amendments require that each element of a crime be confessed to by the defendant or proved to an impartial jury beyond a reasonable doubt. Any fact that authorizes an enhancement to the defendant’s penalty is considered an element that must be found by the jury, the traditional trier of fact, and proved beyond a reasonable doubt.

Given the court has held that a substantively unreasonable penalty is illegal, Scalia argued:

It unavoidably follows 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.

Scalia lamented that, because the court had yet to explicitly set forth this reasoning, the circuit courts had taken silence as license to permit unreasonable sentences based on judicial fact-finding.

The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice.

While a defendant remains “not guilty” on paper, the sentencing judge’s veto of the jury’s verdict renders the acquittal meaningless for all practical purposes. Consideration of acquitted conduct at sentencing effectively eliminates the democratic role of the jury in the criminal justice system, inverting the power structure to allow government to limit the people rather than people to limit the government.

Acquitted-conduct sentencing is an affront to individual liberty, and judicial or legislative action would be welcome responses to the unconstitutional practice. The Prohibiting Punishment of Acquitted Conduct Act would amend 18 U.S.C. Section 3661 to explicitly preclude federal courts from considering acquitted conduct at sentencing, except as a mitigating factor. Congress should advance this simple reform to restore the Constitution’s basic guarantees of due process and the right to trial by jury.


Robert Ehrlich is senior counsel at King & Spalding LLP. He is a former governor of Maryland and a signatory to the Right on Crime statement of principles.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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November 3, 2019 at 08:09PM