KABOOM!* An Unethical Loophole In The Justice System—And The Supreme Court Just Refused To Remove It


Radley Balko, the libertarian investigative reporter, reports in his Washington Post column on a sentencing anomaly I was blissfully ignorant of before, and was a happier man for it. He writes…

Think the government must convict you of a crime before it can punish you for it? Think again.Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted. In fact, the judge can even consider crimes for which the defendant has never been charged.

Balko was writing about Jones v. United States,  in which the jury found three Washington, D.C.not guilty of a conspiracy to run an “open air” market for large quantities of illegal drugs on the streets of the nation’s capital, convicting them only of selling small quantities of the drugs, a relatively minor offense.  The judge, however—think about this, now—decreed that his sentence could also take into account the conduct that had led to the more serious conspiracy charge —that is, exactly the charges that the jury had acquitted them of—gave the three men sentences ranging from 180 to 225 months, while the crimes they were found guilty of committing would justify something in the range of 33 to 71 months.

The defendants appealed the sentence to a federal appeals court, arguing that the longer sentences violated their Sixth Amendment right to have a jury decide the issue of guilt. The appeal was rejected, and they asked for the Supreme Court to overturn the result….and why wouldn’t it? I have wracked my brains, and can think of no justification, legal or ethical, for a judge to sentence a defendant based on charges that were rejected as insufficiently proven by the jury. Can you?

But then, I’m not on the Supreme Court, which just declined to hear this case. Why, nobody knows. Lest some of you think that the much-derided “conservative wing” was the confederacy of law and order zealots that compelled this abdication of logic and decency, please note that the two kinder, gentler, liberal women appointed to the court by Barack Obama voted for the denial of cert. Those mean conservative justices Thomas, and Scalia, however, joined by Justice Ginsberg, filed dissent to the Court’s refusal, saying in part..

We have held that a substantively unreasonable penalty is illegal and must be set aside. … It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable–thereby exposing the defendant to the longer sentence–is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.

…Not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them.

I don’t understand this at all. I don’t understand how a judge can sentence like that, and I don’t understand why the Supreme Court won’t stop it for good.

It’s wrong, unfair and unjust in every way.

* The KABOOM! is the special Ethics Alarms designation for unethical conduct so blatant and shocking that it makes my head explode, and perhaps others as well.


Pointer: Advice Goddess

Facts: Washington Post (Radly Balko); SCOTUS Blog

13 thoughts on “KABOOM!* An Unethical Loophole In The Justice System—And The Supreme Court Just Refused To Remove It

  1. And yes, I do recognize that this post was right in the wheelhouse of recently banned commenter Art Hawley, who incessantly complained about the fact that the Supreme Court did not sufficiently monitor unjust conduct by lower courts. Lesson: Don’t get yourself banned. (It’s not that hard to avoid, you know.)

  2. I, too, am blown away by this.
    One analysis I read said looked at precedent that looked at these sorts of facts as a hypothetical that the Court did not rule on and that these facts it was too good of a case to make a stand on. They needed something a little more ambiguous so they could make a clear declaration that this was wrong.

    (I know, I don’t get the argument either, but when you have such a stupid decision, only stupid justifications can be offered.


    • I read the same blog. I suspect he was making excuses for his favorite justices. Indeed, the case where the facts are strong to support the judge’s illegal sentence is the BEST case to strike down this sort of thing. Who cares what the judge thinks? The Jury voted the defendants innocent of the charges. If OJ’s jury found him guilty of littering private property (all that blood he didn’t clean up, bodies–what a mess!) but innocent of the murders, and the judge sentenced him to life, would the wise Latina blink at that too???

  3. Actually, Jack, I am going to take issue with your characterization. This is not unethical, this is unconstitutional (and unethical in the sense of unprofessional). And, there is no loophole, there is a violation of due process. You have judges punishing people for crimes for which the state was unable to prove by a unanimous verdict of a jury of one’s peers. This is no loophole: this is a naked abuse of power by individuals who should be impeached for violating their oaths to uphold the Constitution (and disbarred?).

    • We agree. But as long as SCOTUS doesn’t stop it, it’s a loophole. Judges will get away with it. It’s like saying an umpire calling a out at home when he was sfe because he thinks the player uses steroids is illegal–so what? Before the review process, the player was out anyway.

      • I’m speechless. But how can SCOTUS get away with not stopping it? To me, that would be more of a scandal than the fact that they didn’t stop it.

  4. One can only hope that this issue gets more mainstream media publicity because it’s hard to imagine how most thoughtful fair-minded people couldn’t be appalled by this regardless of political persuasion.

  5. I don’t practice criminal law (my wife thinks what I practice is criminal, though, but that’s another story for another day) so forgive me my lack of knowledge but this seems to pull the rug out of any and all plea deals as well. If the accused assumes that he/she is facing x prison term for certain charges but the judge can impose a longer sentence for other charges which the DA/US Attorney intend to drop, then what is the motivation to plead out crimes? That is a head scratcher. That seems contrary to due process and Constitutional protections against excessive punishment to me.

    • Another question…if the smart DA knows he can’t get a conviction carrying the death penalty, can he charge capital murder, settle for a manslaughter conviction and still expect the3 death pe3nalty? After all, the perp was charged with capital murder.

  6. Of all the topics discussed in the past 6 months, I’d consider this 1st, 2nd or 3rd in terms of most damaging to our Republic (with a strong lean towards 1st). What’s terrifying is that this will receive next to no attention.

  7. I have to admit I hadn’t heard of such despicable actions in a criminal case before, but I am quite confident my attached book Patriot Quest would help you find insight into how government is deceptively able to put into practice actions even opposed to our nation’s founding principles (my book actually examines how the court upheld legal tender paper currencies [on the fourth try] despite the Constitution’s allowance only for gold and silver coin). While the specific instances (of your blog and my book) are different, I am confident the means ultimately used by government would closely resemble one another.

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