WASHINGTON, D.C. — Despite a lack of direct evidence that a suspect was engaged in ongoing illegal activities, a court sentenced the man to five years in prison based in part on the frequency of his visits to a barbershop where drugs were being sold.

Weighing in before the U.S. Supreme Court in Tucker v. U.S., The Rutherford Institute warns that convictions based on government conspiracy theories and speculative calculations rather than clear-cut proof will render every American a criminal who has the misfortune to be in the wrong place at the wrong time. Moreover, attorneys warn, with the increase in precrime programs, threat assessments, AI algorithms and surveillance programs such as SpotShotter which attempt to calculate where illegal activity might occur by triangulating sounds and images, the burden of proof has been essentially reversed to such an extent that individuals are assumed guilty and must then prove their innocence.

“It’s not enough for the government to think that illegal activity is happening. The Constitution requires the government to provide solid proof of criminal activity before it can deprive a citizen of life or liberty,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The ends do not justify the means, especially if it allows the government to rely on assumptions rather than evidence in order to fight crime. The ramifications of empowering the government to sidestep fundamental due process safeguards are so chilling and so far-reaching as to put a target on the back of anyone who happens to be in the same place where a crime takes place.”

In 2018, agents with the Bureau of Alcohol, Firearms, Tobacco, and Explosives (ATF) uncovered narcotics and drug paraphernalia at a Washington, D.C. barbershop and in the homes of those who ran the operation and acted as the gatekeeper. Although Lonnell Tucker was caught in the act of selling a small quantity of drugs to a government informant one time at the barbershop (a “controlled buy”), ATF agents lacked any direct proof that he was part of the drug trafficking operation. Nevertheless, a jury convicted Tucker of conspiring to sell drugs, basing its findings on circumstantial evidence (a drug dealer’s claim that Tucker was frequently at the barbershop “acting like [he] had a license to sell drugs”) and a single drug sale to a confidential informant. The court was supposed to base Tucker’s sentence in part on the amount of drugs attributed to him, which was the small amount of drugs sold in the controlled buy. However, despite any direct evidence to support its claims, the court reasoned that since Tucker was a frequent visitor to the barbershop, he had been selling drugs five times a week over the course of thirty weeks. Based on that speculative calculation (the small quantity of drugs involved in a single controlled buy multiplied by the possibility of five visits a week over the course of a 30-week investigation), the court sentenced Tucker to five years in prison. Tucker appealed and asked the D.C. Circuit Court to recalculate his sentence. However, the Court affirmed the prison term, relying on the trial court’s speculative calculation and disturbingly claiming that “drug quantity calculations are an art, not a science.” Appealing to the U.S. Supreme Court, The Rutherford Institute joined a number of leading criminal law scholars and organizations to denounce such speculative sentencing practices.

Dawinder S. Sidhu, Shon R. Hopwood, and Kyle Singhal of Hopwood & Singhal PLLC advanced the arguments in the Tucker v. U.S. amicus brief.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

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