Not Guilty. Go Directly to Jail.

Most people are still under the quaint assumption that you can't be punished for a crime for which you've been acquitted. 

Not true.  In cases where a defendant is convicted of some of the charges against him but acquitted of others, the state can pursue a sentence that includes punishment for the acquitted charges. 

Yes.  You read that correctly.  A recent decision from a U.S. district court in Virginia is unusually candid in pointing out the absurdity of the practice, which is apparently pretty common:

After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years. …

What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham.

From the public’s perspective, most people would be shocked to find out that even United States citizens can be (and routinely are) punished for crimes of which they were acquitted.

The opinion itself is refreshingly abrupt and scathing, and seems to have come from the pen of a pretty fed-up judge.  It includes a history of the right to a jury trial, and quotes from Dickens.

As Cato's Tim Lynch explains, extra jail time for acquitted charges both encourages prosecutors to over-charge defendants, and encourages defendants to accept plea bargains -- knowing that at trial they could well be sentenced for crimes they didn't commit.

If you're wondering if all of this is a violation of the Sixth Amendment, well, if the Sixth Amendment means anything at all, it most certainly is.   But we're talking mostly about drug crimes, here -- where the Bill of Rights doesn't apply.

Comments

Number 6 | November 14, 2006, 2:02pm | #

My outrage module must be on the fritz. I should be inveighing against this profanity whenever and wherever possible. I should be vomiting with revulsion. But all I can think is, "Yeah, that figures."

Radley Balko-It's a good thing that there are articulate folks like you who still manage to give a shit.

jb | November 14, 2006, 2:07pm | #

. this is your asshole
o this is your asshole in prison
O this is the asshole in charge of the legal system.

Swillfredo Pareto | November 14, 2006, 2:11pm | #

I think Kurt Vonnegut used the "asterik" as his preferred invocation of an asshole. It better articulates the pucker effect.

Sam Franklin | November 14, 2006, 2:19pm | #

O this is the asshole in charge of the legal system.

Whoa, whoa, whoa. These sentencing guidelines did not come out of the common law -- they were imposed by Congress at the behest of tough on crime voters who wanted strong action.

The legal system was not happy about that. this judge is not the first person actually involved in the legal system to complain about the incursion. Upon request I will give you some links if you have some time to read about the legal system complaining about the absurd results being imposed upon it. Ironically, the voters who have their Congresspersons pass these guidelines want the guidelines because they don't trust the legal system. See the problem?

Thomas Paine's Goiter | November 14, 2006, 2:19pm | #

According to the decisions, the practice is mandatory in hashing out sentencing guidelines.

Are you kidding me?!

Thomas Paine's Goiter | November 14, 2006, 2:25pm | #

What a well-written, clear, concise and easy-to-understand opinion.

Eric S. | November 14, 2006, 2:31pm | #

Sam,

I'm not sure what you're advocating. Please send some links.

Thomas Paine's Goiter | November 14, 2006, 2:34pm | #

One of Charles Dickens’ characters, Mr. Bumble, famously observed, “If the law supposes that, . . . the law is an ass--an idiot." Charles Dickens, Oliver Twist 463 (3d ed. The NewAmerican Library 1961). He was referring, of course, to a legal fiction that had no basis in reality. Many of our fellow citizens believe that Mr. Bumble was right--that the legal process is rigged through sleights of hand that defy common sense. It would only confirm the public’s darkest suspicions to sentence a man to an extra ten years in prison for a crime that a jury found he did not commit.

Bazil | November 14, 2006, 2:39pm | #

After reading stuff like this, one wonders if it's not better to live in a corrupt society well at least your gold can buy your freedom.

I'm not suggesting that's a good solution but one ponders if it's better to live with a flexible and forgiving corrupt judge who will grant you freedom in exchange for money or an unforgiving, inflexible, uncorrupt system that carries you on a conveyer belt down a path to doom, and nobody in the bueracracy is really responsible for this, and yet everyone is...

Juan | November 14, 2006, 2:40pm | #

". this is your asshole
o this is your asshole in prison
O this is the asshole in charge of the legal system."

My favorite take on this theme, as presented by an hispanic comedy troup back in the '70s:

This is your brain (picture of egg).

This is your brain on drugs (picture of egg frying in hot pan).

This is your brain on drugs with chorizos (picture of egg frying in hot pan with chorizos.

Franklin Harris | November 14, 2006, 2:41pm | #

I'm with Number 6, and I'm outraged over my own inability to be outraged anymore.

J sub D | November 14, 2006, 2:42pm | #

Thank you, Radley. This is news to me. Thank you, Honorable Walter D. Kelly. I an sure this will be appealed by the prosecutors. I suspect it will go to the supreme court. Unfortunately, I don't hold much faith that the supremes will uphold the sixth amendment.

Ron | November 14, 2006, 2:47pm | #

This has been going on for years. The Supreme Court essentially invalidated the sentencing guidelines, but the Courts are using them anyway. Sam is right--Congress, at the voters' behest, decided a long time ago that the jury system and "guilt beyond a reasonable doubt" standards were letting criminals walk free, so they passed laws (and authorized sentencing guidelines) to circumvent them. If I were a prosecutor and I decided I didn't like you, you are toast--I can take any minor violation and send you to prison for a very long time without having to actually prove you guilty of anything that amounts to much more than a foot-fault. The Pittsburg newspaper did a nice series on this problem 10 years or so ago. Problem is, no one cares in general, although I have heard some anecdotal stories about juries acquitting people who were clearly guilty because they knew the sentence was going to be excessive.

Sam Franklin | November 14, 2006, 2:50pm | #

I'm not sure what you're advocating.

In the vernacular, I am saying don't blame the lawyers for the federal sentencing guidelines. Rather, blame people who don't trust lawyers sufficiently.

More specifically, I am advocating that the federal sentencing guidelines be repealed (not even advisory guidelines), and that sentencing discretion be returned to the courts.

Federal sentencing guidelines:

http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines
(SCOTUS fights sentencing guidleline on 6th amendment grounds -- I think Radley will be surprised to find out that Booker was a crack cocaine case).

http://www.democracynow.org/article.pl?sid=05/01/14/1519236
(Barry Scheck, super-smart lawyer, perhaps contradicting me a bit as far as lack of judicial involvement in crafting the guidelines)

http://www.constitutioncenter.org/education/ForEducators/DiscussionStarters/FederalSentencingGuidelinesRevisited.shtml
(article on Booker with further links, confirming my account in its essentials)

Brian Courts | November 14, 2006, 2:54pm | #

Yet another good argument for jury nullification.

Ron | November 14, 2006, 3:00pm | #

Radley: By the way, welcome aboard, and keep bringing these issues to light. The rampant abuse of the criminal justice system is by far the greatest threat to personal freedom in this country.

Sam Franklin | November 14, 2006, 3:17pm | #

Sentencing guidelines and jury nullification:

http://tinyurl.com/y7l7gk

Joel | November 14, 2006, 4:02pm | #

Pardon me while I geek out for a second.

This reminds me of a scene in the Transformers movie where a judge declares some prisoners innocent... and then dumps them in a pit.

I remember being really disturbed by that scene as a child.

Tim | November 14, 2006, 4:37pm | #

. this is your asshole
o this is your asshole in prison
O this is the asshole in charge of the legal system.

*
* *
* *
* * -> this is the asshole
* *
* *
* *
*

Tim | November 14, 2006, 4:39pm | #

I meant:

*
*.....*
*.........*
*...........*
*.........*
*.......*
*...*
*

Tim | November 14, 2006, 4:40pm | #

Sorry.

......*......
...*.....*...
.*.........*.
*...........*
.*.........*.
..*.......*..
....*...*....
......*......

Paul Davis | November 14, 2006, 5:33pm | #

I have a strange compulsion to be living in the days of gotse again. :)

jp | November 14, 2006, 5:52pm | #

Sam Franklin -- your efforts are appreciated.

jb | November 14, 2006, 7:30pm | #

Sam:
Fine....**************************************
********************************************

These are the assholes in charge of the legal system.

But now my little diagram doesn't work.

Will Allen | November 14, 2006, 8:26pm | #

Are any of the first ten amendments meaningful any longer?

J.R. | November 14, 2006, 8:43pm | #

We still have good old number 3!

Windypundit | November 14, 2006, 10:46pm | #

I'm still betting that the last uninfringed amendment will fall to the McCain-Lieberman Troop Quartering Act of 2010.

Dave | November 15, 2006, 4:58am | #

Is this a fucking joke?

I have nothing more to say.

Dave D | November 15, 2006, 9:06am | #

This really gives me something to think about since I have jury duty coming up next month. I have read some disgusting things on the internet but I think I just read the topper.

Mr. X | November 15, 2006, 9:58am | #

I'm gonna be a stickler on this, having burnt a good part of a semester on these kind of issues.

The defendant is not actually being punished for the charges that he was acquitted of.

He was sentenced for the one money laundering charge. It just so happens that the money laundering charge has a maximum sentence that is well, well above what is typically meted out.

Yes, it's bullshit that Congress is telling...ummm...I mean suggesting what sentences judges should hand down, but the judge still has the discretion to deviate downward.

Sam Franklin | November 15, 2006, 10:13am | #

the judge still has the discretion to deviate downward.

Can prosecutors appeal on that ground (and do they)?

If so, that doesn't sound like a real option.

Ron | November 15, 2006, 1:06pm | #

Mr. X: This is a system Joseph Stalin would readily recognize. During the purges, his minions developed the concept of "guilt by analogy". That is, even if your conduct was not per se treasonable, if it was analogous to conduct that was treasonable, we get to take you out back and shoot you in the head.

AK | November 15, 2006, 1:52pm | #

The Wall Street Journal had an article on this years ago. With the changes in sentencing I thought this had passed, and I'm sad to hear it hasn't.

Tom | November 15, 2006, 1:58pm | #

Mr. X, the opinion addresses both points. In the Fourth Circuit, deviation from sentencing guidelines must be justified. So, the judge justifies his deviation. Part of his justification is that no amount of semantic bullshit can support any path from acquittal to harsher sentence.

Bob Mc | November 15, 2006, 6:36pm | #

This reminds me of when the Waco defendants were acquitted of attempted murder, then sentenced for possesion of a weapon during the commission of a crime (said crime being the attempted murder for which they were acquitted). An injustice then, injustice now.