My column in The Sun today is about a widely respected federal judge, Andre Davis, now retired, and his involvement in getting active judges to reduce the life sentences of men Davis sent to prison during the nation’s long war on drugs. But the column also deals with an aspect of federal sentencing law I never heard of until I started reporting for this column. It’s called “acquitted conduct sentencing.” It allows a federal judge, when contemplating the sentence against a defendant tried on multiple charges, to consider a charge for which the defendant was found not guilty. Though it sounds highly prejudicial and constitutionally dubious, the Supreme Court in the 1990s upheld it, saying judges could consider the “acquitted conduct” of defendants. Judges can review the prosecution’s case and find a “preponderance of evidence” that a defendant committed a crime, essentially nullifying a jury’s finding of not guilty. Such a finding then becomes part of the judge’s computations for a sentence, adding to the penalty (prison time) for the defendant. As Charles G. Bernstein, a longtime defense attorney and retired Maryland judge, put it to me: “If the jury convicted him of murder, he gets a life sentence; if the jury acquitted him of murder, he also gets a life sentence. Why have a trial? Why not move directly from arrest to sentencing?”

Indeed. Here’s an essay by former Maryland Gov. Robert Ehrlich in opposition to “acquitted conducting sentencing.”

The Supreme Court last fall refused to consider a new challenge to the law that allows judges to do this.

With the recent efforts to reform sentencing laws and practices from the war on drugs, I’m on the shocked side of understanding that this practice still exists.

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