Acquittal First, Then Punishment

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]