But notwithstanding the jury’s decision, the judge sentenced Cabrera‐Rangel based in large part on the very conduct on which the jury acquitted him — the alleged use of a “dangerous weapon” (the flashlight). Basically, the judge viewed the evidence differently than the jury had, finding the agent’s testimony “very credible,” and imposed an eight‐year sentence (the statutory maximum for the offense for which he was actually convicted). Cabrera‐Rangel argued before the Fifth Circuit that it violated his right to a jury trial to be sentenced on the basis of acquitted conduct, but the appellate court rejected his claim.
The Cato Institute has therefore filed an amicus brief in support of Cabrera-Rangel’s cert petition before the Supreme Court. The basic underlying question — whether a judge may sentence based on acquitted conduct — is a pervasive, recurrent, and deeply troubling issue that the Supreme Court has ducked for years now. Just four years ago, Justice Scalia, joined by Justices Thomas and Ginsburg, wrote that this practice “has gone on long enough,” and urged the Court to consider the question. This is a perfect case for the Court to do just that.
Our brief argues that sentencing defendants based on acquitted conduct essentially amounts to an end‐run around the jury trial itself, and is fundamentally inconsistent with our long and storied history of jury independence. This practice is especially troubling today because it puts insurmountable pressure on defendants to take guilty pleas. Even if a defendant goes to trial and wins on the most serious charges, that hard‐fought partial victory is effectively meaningless when the acquitted conduct still results in a drastically lengthened sentence. In light of the already troubling rates of modern plea bargaining, it is all the more important for the Supreme Court to put a stop to this practice and protect the sanctity of jury acquittals.