DISTRICT OF COLUMBIA - An unusual lineup of three U.S. Supreme Court justices on Tuesday scolded the majority for declining to resolve a long-running dispute over judicial discretion in sentencing. The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.
The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if a case that clearly presented the question came to the court.
"This has gone on long enough," Justice Antonin Scalia wrote in his dissent from denial of review in the Jones case Tuesday. "The present petition presents the non-hypothetical case the court claimed to have been waiting for." Justices Clarence Thomas and Ruth Bader Ginsburg joined Scalia's dissent.
In the case the court denied, a D.C. jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.
Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he “saw clear evidence of a drug conspiracy,” and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively—four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court.
Citing the Apprendi line of cases—which established that facts increasing a defendant's penalty must be found by a jury, not a judge—Scalia said, "petitioners present a strong case that, but for the judge's finding of fact, their sentences would have been substantively unreasonable and therefore illegal."
The Jones case, Scalia continued, is "a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense."
The U.S. Court of Appeals for the D.C. Circuit ruled in Jones that the defendants' Sixth Amendment rights had not been violated, in part because even the enhanced sentences did not exceed the statutory maximum for the crime. The Justice Department made the same point in urging the Supreme Court to deny review.
Scalia concluded, "We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable."
Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied Tuesday, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The votes of four justices are needed to add a case to the court's docket for review.
The fact that conservatives Scalia and Thomas dissented—along with liberal Ginsburg—"ought to be a fire bell in the night" signaling that the issue should be resolved, once and for all, Leckar said. Sentencing expert Douglas Berman, a professor at Ohio State University Michael E. Moritz College of Law, said on his blog Tuesday it was especially disappointing some of the newer justices did not join Scalia for a fourth vote.
"Anyone [like me] hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones," Berman wrote.
National Law Journal/Oct. 14, 2014
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