After the public spectacle surrounding the arrest and trial of former Illinois Gov. Rod Blagojevich, the jury's decision to hang on 23 of 24 charges has largely been viewed as an embarrassing failure for Patrick Fitzgerald, Chicago's top federal prosecutor. The editorial boards of the Washington Post and Wall Street Journal, among others, have suggested that a retrial crosses the line from prosecution to persecution and would be a huge waste of public resources. Still, government lawyers declared that there would be a rematch, and the judge overseeing the case scheduled it for the beginning of next year.
But there's another good reason to forego a retrial and it's one that could redeem Fitzgerald's efforts. A controversial federal rule allows (and arguably requires) judges to consider virtually any conduct related to any conviction when deciding on a sentence. Even if it's conduct underlying a charge on which a defendant has been acquitted. So, although Fitzgerald may only have been able to convict Blagojevich on a single count of lying to the FBI, he still could obtain the maximum sentence for Blagojevich on that charge—five years. But should Fitzgerald actually use this weapon to nail Blagojevich without retrying him?
The possibility arises from a congressional decision in 1987 to adopt the United States Sentencing Guidelines. The guidelines require judges to hold defendants accountable at sentencing for all of their "acts and omissions . . that were part of the same course of conduct or common scheme or plan as the offense of conviction" as long as they are established with some level of reliability. In 1997, the Supreme Court held in United States v. Watts that this specifically includes "all other related conduct, whether or not it resulted in a conviction." Together, the guidelines and Watts mean that judges can base prison terms on any conduct associated with any count of conviction—that is, any "relevant conduct" —as long as it has been established by a preponderance of the evidence. This standard is much lower than "beyond a reasonable doubt," which of course is the burden of proof prosecutors must satisfy to secure a conviction. As professsor Doug Berman of the Moritz College of Law at Ohio State University has noted, at least one federal appellate court has gone so far as to rule that it's a mistake not to consider such conduct in the sentencing process.
This concept may seems Kafka-esque, but it's historically unsurprising. Before Congress enacted the sentencing guidelines, federal criminal statutes simply gave judges a punishment range: They could imprison a defendant anywhere up to 20 years, say, for mail fraud. (Sentencing laws vary from state to state.) Judges were free to consider whatever they thought relevant in meting out a punishment anywhere within that broad spectrum. There's really nothing different about how sentencing works today. Judges still operate within a given range, and they set the length of a defendant's jail term within that range based on an independent determination of a whole host of factors, including the guidelines, the nature and circumstances of the offense, and the history and characteristics of the defendant. After all, there would be no point in setting maximum penalties if criminals didn't at least face the possibility of receiving them.
Though Blagojevich faces a maximum of five years for his conviction, some legal experts believe that federal guidelines suggest a shorter sentence. But because jurors were reportedly deadlocked 11-to-1 in favor of conviction on three key counts *, Fitzgerald could easily establish that he proved those charges by at least a preponderance of the evidence—"your Honor, but for one lone juror"—and that the judge should take that conduct into account, to the extent it's related to the conviction for lying to the FBI, and give Blagojevich the max.
But this result risks undermining the public's confidence in the fairness of the judicial system and Fitzgerald's motivations for going after Blagojevich. As David Feige has observed in Slate, basing sentences on conduct that did not result in a conviction gives prosecutors an extra edge. If they bring multiple charges against a defendant, but a conviction on even one can result in the same jail term as a conviction on all, then there's no reason for any defendant to put government lawyers to the ultimate test by forcing them to prove their case at trial. Prosecutors can stick to seeking a conviction on the easy stuff, and then shoehorn in the hard stuff at sentencing with the benefit of the lower preponderance of the evidence standard. By contrast, if the law didn't permit judges to consider a defendant's "relevant conduct," prosecutors would have to prove everything beyond a reasonable doubt at trial before a sentence could be based on it.
Using relevant conduct as a basis for imposing a harsher sentence also allows judges effectively to skate by jury verdicts and make their own findings of fact. This is particularly peculiar today, as it seems to fly in the face of a string of recent Supreme Court decisions holding that judges violate the Sixth Amendment right to trial by jury when they increase sentences based on facts that they, instead of the jury, find. This line of cases begins in 2000 with Apprendi v. New Jersey, in which the Supreme Court invalidated a 12-year prison sentence because it was based in part on the conclusion of a judge, rather than a jury, that the defendant had violated a state "hate crime" law. In 2004, the justices similarly scrapped a sentence in Blakely v. Washingtonthat was based on a judge's conclusion that the defendant acted with "deliberate cruelty," and in 2005 they did away with the sentence in United States v. Booker,which was based on the judge's determination that the defendant possessed more drugs than the amount presented to the jury at trial.
And yet the Supreme Court still allows judges to impose sentences based on facts that juries expressly reject—like the charges Blagojevich essentially beat. For example, in 2008 the justices refused to hear the appeal of Mark Hurn, whose 17½-year sentence was based almost exclusively on crack cocaine charges of which he was acquitted rather than the powder cocaine charges for which he was convicted. As Judge Nancy Gertner of Massachusetts (who has written for Slate) forcefully argued in another case, sentences like Hurn's just don't square with Apprendi and the other Supreme Court cases that follow it. As she put it: "It makes absolutely no sense to conclude that the Sixth Amendment is violated whenever facts essential to sentencing have been determined by a judge rather than a jury … and also conclude that the fruits of the jury's efforts can be ignored with impunity by the judge in sentencing."
Beyond a reasonable doubt, Blagojevich is guilty of lying to the FBI. But while he may well have committed other crimes, prosecutors just couldn't convince all the jurors of that. That should be the end of the story. But it may not be. Instead, there's a possible postscript: Fitzgerald could ask the judge to consider Blagojevich's other alleged offenses when sentencing him on the one proven crime—even though a jury wasn't able to reach a verdict on that other conduct. That may sound good in this case, but it actually reveals a larger injustice. Not only for Blagojevich, but also for all those other defendants you've never heard of.