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Arrests Are Not Convictions: A Sentencing Judge Is Reversed For An Excess of Candor

Thomas Johnson was no stranger to the law. Growing up in New Orleans, the twenty-four year old had been arrested at least 15 times. Three of those arrests resulted in convictions.

Mr. Johnson said that in his neighborhood, to get arrests, the cops would pull up whenever there were a group of guys on the corner and arrest the ones the cops were able to catch.

One time when the police pulled up on a group of young men on a New Orleans corner, Mr. Johnson ran. As he ran, he threw a silver and black object from his pants. That object happened to be a gun.

He pled guilty to being a felon in possession of a firearm in federal court in Louisiana. His sentencing guidelines range was 37 to 46 months.

The government asked the court to sentence him to 70 months in prison, almost twice the bottom of the guidelines range. The government supported this request by noting, among other things, that Mr. Johnson had been arrested twelve times without being convicted. The three times he was convicted, he only received probation. So, the government reasoned, Mr. Johnson needed to be sentenced to a lot of time in this case to make up for the time he didn’t get before (or something like that).

The district court looked at his 12 past arrests and thought that where there’s smoke, there’s fire. Because the facts of the 12 arrests were all pretty similar – cop pulls up to corner, Mr. Johnson, with others, runs and the cops chase him – the court figured that Mr. Johnson was probably doing something illegal each time. He was sentenced accordingly, to 63 months in prison.

His lawyer objected to the district court’s use of the prior arrest records. They are, after all, just arrests, not convictions. If it’s unfair to use someone’s past convictions against them, it’s so much more unfair to use the person’s past arrests.

The Fifth Circuit, in United States v. Johnson, agreed.

Noting that all the facts found by the district court at sentencing have to be sufficiently reliable to satisfy due process – meaning, basically, you’ve got to know that the information the judge is using when he imposes sentence is reliable – the court of appeals held that the district court cannot use an arrest record as evidence of prior illegal conduct.

The Fifth Circuit, in other words, rejected the district court’s “where there’s smoke there’s fire” reasoning. Or, to use the Fifth Circuit’s fancier words, “[w]e have long recognized that an arrest, without more, is quite consistent with innocence.”

This is a good result. Congratulations to Mr. Johnson, and his lawyer.

Here’s what I’m troubled by. In every federal sentencing, the court asks the United States Probation Office to prepare a presentence report. It’s required by Rule 32(c) of the Federal Rules of Criminal Procedure.

The presentence report is supposed to be a financial, employment, educational, family, and medical history of the person about to be sentenced. It also includes a criminal history. Here’s a link to a blank presentence report form so you can see what’s in it.

The criminal history section always includes the person’s past arrests that did not result in a conviction.

If, as the Fifth Circuit so rightly says, “an arrest . . . is quite consistent with innocence,” why do sentencing courts get pages and pages of arrests when they’re looking at what information to consider before a sentencing hearing?

Each arrest gets two or three paragraphs. Most people’s children get a sentence or two buried at the end of one paragraph. Are arrests, which a district court is supposed to ignore, more important than a person’s kids? If you look at the space devoted to the topics in the presentence report, then it’s hard to say that the answer, from the court’s point of view, is anything but yes.

The problem with Johnson, I suspect, is that this district court judge was simply excessively honest. This kind of reversal won’t happen often. Sentencing judges see arrest records all the time – the system is set up to force them to see these arrest records. Most judges, I suspect, simply don’t mention them if they matter because no district court judge wants to be reversed.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.