The indispensable and indefatigable Doug Berman recently posted about an interesting sentencing-related petition for certiorari pending in the U.S. Supreme Court that might be considered at the January 6 conference. To quote from the amicus brief he helped prepare in support of the petition, the issue involves “the oft-recurring issue of whether the Constitution and federal sentencing law limits reliance on jury-rejected facts for dramatic Guidelines enhancements and impositions of lengthy prison terms.”
Citing United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (plurality op.); Alleyne v. United States, 570 U.S. 99, 114 (2013); Blakely v. Washington, 542 U.S. 296, 306 (2004); and, of course, Apprendi v. New Jersey, 530 U.S. 466, 477 (2000), the amicus brief argues:
This Court has repeatedly extolled and stressed the importance of a defendant’s right to have a jury decide facts essential to punishment: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government.” …. But when the Guidelines and a judge rely on jury-rejected facts to significantly increase a sentence, the jury trial “promise” becomes empty and this “vital” protection against the government becomes illusory. Problematically, many lower courts continue to read this Court’s jurisprudence to call for treating acquitted-conduct fact-finding at sentencing as indistinguishable from any other form of fact-finding at sentencing. But if oft-repeated statements about the importance of Fifth and Sixth Amendment trial rights as a limit on government power are to have any real purchase and enduring meaning, the Court should grant review in this case to articulate limits on judicial authority to dramatically increase a sentence based on jury-rejected facts.
Whether the federal sentencing guidelines limit the use of acquitted conduct doesn’t bear on Wisconsin law, but whether the Constitution limits its use certainly does. Our case law allows a sentencing court to take into account the conduct underlying an offense for which the defendant was acquitted. State v. Arredondo, 2004 WI App 7, ¶54, 269 Wis. 2d 369, 674 N.W.2d 647; State v. Bobbitt, 178 Wis. 2d 11, 16-18, 503 N.W.2d 11 (Ct. App. 1993); State v. Marhal, 172 Wis. 2d 491, 503, 493 N.W.2d 758 (Ct. App. 1992). The rule is premised on the distinction between the role of the jury to determine whether guilt has been established beyond a reasonable doubt and the role of the sentencing court “to assess the defendant’s character using all available information.” Arredondo, 269 Wis. 2d 369, ¶53. That information “need not … be established beyond a reasonable doubt.” Marhal, 172 Wis. 2d at 502.
If the Court grants the petition, On Point will let you know.