When does a trial judge go too far in meting out a tough sentence based on factors other than those a jury considered in rendering its verdict?
A trial by jury is, of course, sacrosanct. Supreme Court precedents are clear that judges err when they rely too much on their own wisdom rather than that of a jury’s.
So at first glance, a case decided last week by the U.S. Sixth Circuit Court of Appeals seems to be an example of a trial judge being properly reined in. But closer examination raises more questions about the appeals court’s abuse of discretion than the trial judge’s. Sometimes, it seems, the appeals court is the one that ought to leave well enough alone.
In United States v. Hamad, the three-judge panel ruled unanimously that the trial judge improperly lengthened Mr. Hamad’s sentence for two counts of illegal gun ownership. (Hamad had lost his gun rights upon conviction of a previous felony.) Because of evidence about the defendant’s character presented during the post-jury sentencing phase, the trial judge imposed a lengthier sentence than he otherwise might have.
But that evidence was presented only in general terms, rather than as specific testimony from witnesses the defendant’s counsel could cross-examine at trial. Appealing the severity of the sentence, Mr. Hamad argued that denial of an opportunity to rebut specific “evidence” of his bad character was a violation of his due process rights if a judge used it to lengthen his sentence.
In a decision written by conservative Judge Jeffrey Sutton (no slouch in the tough-on-crime department), the appeals court agreed with Hamad. Sutton arguably maintained consistency with a line of U.S. Supreme Court cases (most of them involving the death penalty, which was not at issue here) beginning with Apprendi v. New Jersey. In Apprendi, conservative stalwarts Antonin Scalia and Clarence Thomas joined liberal lion John Paul Stevens to say that a judge could not lengthen a sentence based on facts not presented during the formal trial.
Nevertheless, I believe Sutton erred.
The sentencing questions at issue in Hamad were slightly different from those in Apprendi, but Thomas’ concurring opinion in Apprendi provides a logically crucial (albeit non-binding) distinction that Sutton ought to have applied.
Here’s what happened: Federal sentencing guidelines recommend a prison term of 41 to 51 months for Mr. Hamad’s constellation of offenses. Upon receiving affidavits, to which Hamad was not privy, asserting that Hamad was “violent with his own wife and children” and generally a “dangerous” man, the trial judge considered imposing a sentence greater than 51 months.
Eventually, the judge did stay within the guidelines, assessing a 48-month sentence, but noted that it was “very clear [that he had] taken into consideration materials that are under seal.” That was the admission that garnered Sutton’s rebuke. “To this day,” Sutton wrote, “Hamad has no way of knowing who his accuser is or how to respond to, much less impeach, the accusations.”
But here’s where I believe Sutton himself, not the trial judge, abused his discretion. Sutton acknowledged that “it remains unclear under modern sentencing practices what due process right [Hamad] has to know who these witnesses are and what they have said. …” But he then plowed ahead as if it were very clear indeed.
What he missed is that Apprend; and other cases on which he more explicitly relied, involved examples of judges applying non-jury-reviewed facts to impose a sentence outside the range of the ordinary guidelines. In the Hamad case, the trial judge merely considered exceeding the guidelines, but in the end imposed a sentence near the high end, but still “within the advisory guideline range.”
In concurring with Apprendi, Justice Thomas made clear that while a judge ought not run afoul of a legislature’s establishment of “a particular … range of punishment of the accused,” it was a mistake to apply the same “constitutional constraints … to the imposition of punishment within the limits of that … broad range of punishment.”
In U.S. v. Hamad, the jury found the defendant guilty, and the judge imposed a sentence within the ordinary statutory guidelines for his crimes. Where’s the problem? How is the Constitution implicated at all? Sutton, not the trial judge, is creating a constitutional issue where none exists.
This case ought to be appealed to the Supreme Court, which should reverse the Sixth Circuit and reinstate the original sentence.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator. He can be reached at [email protected].
