Acquittal First, Then Punishment

Jacob Sullum | April 11, 2008

In a recent series of cases that led it to declare federal sentencing guidelines advisory rather than mandatory, the U.S. Supreme Court emphasized that it's the jury's responsibility, not the judge's, to determine the facts on which a defendant's punishment hinges. Allowing judges to make factual findings that trigger automatic sentence enhancements, it ruled, violates the Sixth Amendment right to trial by jury. At the same time, the Court has held that judges may rely on "the entire range of conduct" alleged by prosecutors, including counts rejected by the jury, when they impose sentences. The Court recently passed up an opportunity to revisit the 1997 decision in which it announced that rule, which is pretty hard to reconcile with the principle that people should be punished only for crimes of which they're been convicted.

At the end of last month, the Supreme Court declined to hear an appeal by Mark Hurn, a Madison, Wisconsin, man who was arrested in 2005 after a police search of his home found 450 grams of crack cocaine, 50 grams of powder cocaine, and $38,000 in cash. Hurn admitted selling cocaine but insisted the crack belonged to other people who lived with him. The jury convicted him of cocaine powder possession, which carried a penalty of two to three years, but acquitted him of crack possession. The judge nevertheless punished him as if he'd been convicted of the crack charge, imposing an 18-year sentence. The U.S. Court of Appeals for the 7th Circuit conceded that Hurn's sentence was "almost entirely" based on the crack charge that the jury had rejected (which also illustrates the arbitrary disparity in punishment between smoked and snorted cocaine) but approved the punishment anyway, citing the "entire range of conduct" rule. 

[via the Drug War Chronicle]

Comments

Episiarch|4.11.08 @ 4:03PM|#

Hold on. So if somebody is charged with murder but the jury comes back with manslaughter or criminal negligence or something, the judge can hit the defendant with the prison sentence for murder anyway?

|4.11.08 @ 4:07PM|#

I recently learned that lower-class monkeys prefer coke to food. Is there no study too small to conduct?

Jay D|4.11.08 @ 4:13PM|#

Inquisitor:Has the imperial magestrate reached a verdict?

Judge:I have.

Inquistitor:Guilty or innocent?

Judge:Innocent.

Inquisitor:Feed him to the Sharkticons.

Elemenope|4.11.08 @ 4:17PM|#

but approved the punishment anyway, citing the "entire range of conduct" rule.

What the fuck is this, Calvinball?

TallDave|4.11.08 @ 4:21PM|#

The jury convicted him of cocaine powder possession, which carried a penalty of two to three years, but acquitted him of crack possession. The judge nevertheless punished him as if he'd been convicted of the crack charge, imposing an 18-year sentence.

Unbelievable. A flagrant violation of due process.

Does the Bill of Rights mean anything anymore? Are we going to give up all our rights over this stupid moralist crusade?

Keith Richards|4.11.08 @ 4:25PM|#

"lower-class monkeys prefer coke to food."

I'll look into it as soon as urkobold is done tongue-waxing my taint.

|4.11.08 @ 4:27PM|#

So, why doesn't one of the lower courts grow a pair and overturn the sentence on the grounds that the Supremes got it wrong? Flagrantly wrong? So wrong your Con Law professor would have you flogged from the classroom wrong?

|4.11.08 @ 4:29PM|#

Jay D:

Awesome.

Elemenope|4.11.08 @ 4:41PM|#

So wrong your Con Law professor would have you flogged from the classroom wrong?

Indeed. Burlap sack and bamboo rods wrong.

|4.11.08 @ 4:46PM|#

Crucifixion?

|4.11.08 @ 4:54PM|#

N-- n-- n-- n-- n-- n-- n-- no, sir. N-- not-- not with these b-- bastards, sir. C-- cr-- rrrr-- c-- c-- crrr-- c-- c-- c-- crrrrucifixion's too good for 'em, sir.

Zeb|4.11.08 @ 5:10PM|#

What the fuck? Why even bother with a trial, then?

\"Keith Richards|4.11.08 @ 5:21PM|#

"Keith Richards | April 11, 2008, 4:25pm | #

"lower-class monkeys prefer coke to food."

I'll look into it as soon as urkobold is done tongue-waxing my taint."


Still going strong...and that raspy tongue! I'm in heaven!!!

Kaganspawn|4.11.08 @ 5:31PM|#

The supreme court denied cert which means it let the appellate court's decision stand. Like the thread I'd prefer they overturned stupid decisions like this one, but maybe it's not such a bad thing because this is not the case the criminal defense bar wants to go to the supreme court on to cut back on the judiciary's discretion in sentencing -- difficult facts of the case to sell to the cons as facts make the D appear to have been a low-level coke dealer even though he was not charged as such.

Kaganspawn|4.11.08 @ 5:50PM|#

Under the 1997 supreme court cases, both of which involved coke-dealing convictions, the trial judge in sentencing is allowed to consider facts he or she deems established "by a preponderance of the evidence" as opposed to the criminal conviction standard of "beyond a reasonable doubt." We have two standards and it follows that there are facts proven by the more lenient standard but not the stricter one. That does not mean I think the court should be allowed to consider for sentencing purposes that a D is guilty of an offense for which he or she has been acquitted. That's clearly a wrong result. But broadly speaking, limiting judicial discretion in sentencing can both hurt and help D's.

ONDCP Spokesman|4.11.08 @ 5:58PM|#

Let's not get overly concerned here. The maiming of Justice is just collateral damage in the War on Youth Drugs.

It's a WAR, people.

|4.11.08 @ 6:22PM|#

If it's a war then why aren't we allowed to shoot back?

NP|4.11.08 @ 7:17PM|#

Episiarch,

I'm guessing that would be highly unlikely, since your case involves only one count and also a considerably severer sentence. But if your case involved both murder and, say, kidnapping, then yeah, I can see why the judge might throw in the kidnapping conviction. Which is bad enough, but still your case seems a bit of a stretch.

Heinrick|4.11.08 @ 7:19PM|#

That seems fair.

TallDave|4.11.08 @ 7:26PM|#

Jay D,

ZOMG flashback!

What a great episode that was. I loved the turning-head judge thingy.

|4.11.08 @ 11:20PM|#

I loved the turning-head judge thingy.

Those were Quintessons.

Yes, I am a huge dork.

|4.12.08 @ 6:06PM|#

"I have nothing _but_ contempt for this court!"

|4.13.08 @ 3:19PM|#

But I thought we were generally in favor of jury nullification...