B.L.U.F. A follow on to the Hoover case regarding sentencing.
Yesterday, in Policies are not laws, we discussed how sentencing guidelines work. A short recap:
The courts use a rubric to decide the range of sentences that should be imposed. One axis is the “level” of the crime, the other is the category of criminal. Before sentencing, the court gathers all the information required to use the table. This is done by the Bureau of Prisons using local community resources.
Once the PSR is completed, the prosecutor reviews it, makes changes where required, presents it to the defense. At a hearing, the parties argue over the PSR, and then it is in the Judge’s hands.
The prosecutor will recommend a sentence based on the guidelines. The judge gives the final sentence.
The facts in this case are that Dayonta McClinton and his friend robbed a pharmacy. Afterward, the two got into a dispute and McClinton’s friend was shot and killed.
McClinton was arrested and charged with robbery and murder.
The base level for First Degree Murder is 43 points, which is for premeditated. It looks like the shooting was Second Degree Murder at 38 points.
McClinton was found not guilty of murder in a jury trial. The prosecution was not happy with this.
McClinton was found guilty of robbery. I am going to assume armed robbery. The base level for robbery is 20 with a modifier of 6 for a total of 26 points.
At 26 points, he is up for 63 through 150 months, depending on Criminal History Category. The category is based on how often he has been incarcerated and for how long. There are also modifiers for doing crime while being on probation.
My Google foo is not up to finding criminal histories. My guess is that he is a Category III with 3 to 6 points.
In our table, that gives a sentencing of 78–97 months, or 6.5 to 8 years.
That seems like a reasonable punishment for armed robbery, if the criminal did not achieve room temperature during the act.
Unfortunately for McClinton, that isn’t what happened.
Even though McClinton had been acquitted of murder, the prosecutor used the accusation/charge of murder to modify the location on the sentencing table. This could have been adjustments for the Armed Robbery, or it could be adjustments in the Criminal Category.
If McClinton is bumped up just one category, his sentencing range goes from 78–97 to 92–115. That is a maximum duration of 9 2/3 years, up from 8 years.
But let’s say that the prosecutor added 3 points to the level and bumped him that one category. That takes us to 121–151 months, 10 to 12 1/2 years.
All because he is being sentenced based on a crime he was found not guilty of committing.
The supreme court denied certiorari on the case. Some justices feel that the use of an acquitted charge is wrong. Others feel that the issue isn’t ripe because the sentencing guidelines are being reworked. And Alito took issue with what he felt was Sotomayer advocating for the sentencing committee to make the changes she wants.
—Order List (06/30/2023) (May 2023), https://www.supremecourt.gov/orders/courtorders/063023zor_b07d.pdf
Ok, so If I understand this process correctly, the judge evaluates the character of the defendant based on all available information and uses it to in essence to correct what the judge believes is an injustice, in that the jury erred in its finding.
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So the judge overrides the jury’s decision. Is it a backdoor unethical practice? I don’ t know. But I do believe the criminal history of the defendant should come into play, and I guess I’ll say, regardless of what the evidence swayed the jury to decide. Criminal History Trumps Evidence. I’ve always disagreed that past criminal history was not relevant and therefore not allowed during the trial.
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Speaking of perceived injustices, when a surgeon repeatedly harms patients, to the point they are dismissed from their position within a healthcare organization, the butcher can go anywhere else to work and their history is prohibited by law from following them. The next hospital across the state does not have access to the butcher’s botched surgery history. The Hippocratic Oath today is rendered useless.
An acquittal is not criminal history though. That’s the sticking point.
Thanks Birdog357, I did understand that point. But is it true that some judges, when prosecutors fail to prove guilt beyond a reasonable doubt, use the defendant’s past criminal history to bring the level of punishment which would have occurred if there wasn’t an acquittal. Essentially the judge bypasses the prosecution’s failure to persuade the jury by using past history.
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Or is the point that the defendant, let’s say for sake of argument, only has acquittals in their history, are there some judges still using them to determine sentencing for a current case?
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Perhaps I need more coffee, brb.
I have no problem with past convictions being used to increase current sentences. It’s just that any prosecutor can indict a ham sandwich. So acquittal shouldn’t count because with our current crop of prosecutors, a lot of cases are bullshit from the word go.
That discretion worries me having grown up in the Good Ol Boy system. The hammer is never used evenly. It also makes our ability of jury nullification kind of moot I feel.