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