Heads I Win, Tails You Lose: How Judges Make You Do the Time Even If You Didn't Do the Crime

In the layman's view of the criminal-justice system, defendants go to trial, are convicted or acquitted of certain charges, and if convicted, are sentenced for the offenses. But try to explain the reality of being sentenced for acquitted conduct, and you're likely to be met with stares of astonishment. "You mean you can go to trial, get acquitted and still go to the slammer for stuff the jury says wasn't proven?"

Indeed, my friends, welcome to the wacky world of criminal sentencing.

Not only have many defendants been sentenced for stuff the jury said they didn't do (or at least wasn't proven), but yesterday the Supreme Court refused to do anything about it. The cert denial came in the case of Mark Hurn of my hometown, Madison, Wis. Hurn ate 15 years extra years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. It's true. Though he was convicted of having powder cocaine in his house, (for which he was looking at two or three years in prison), he was sentenced to almost 18 years. Why? Because even though the jury acquitted him of the crack charge, the judge kind of figured he'd done it and therefore found, by a preponderance of the evidence that he'd done it, and sent him to prison as if the jury had actually said "Guilty" rather than "Not Guilty."

Strange? Yes. But sadly, also true.

And while the high court's refusal to hear Hurn's appeal (notwithstanding reverse his sentence) yesterday was cowardly enough, with the fourth circuit's decision this afternoon in US v. Ibanga, we have finally landed in Wonderland. In the case (and no it's not a joke though I wish it were), the fourth circuit basically says that not only CAN you sentence on acquitted conduct, categorically refusing to consider it is actually error.

What does that mean? It means that if you go to trial and blow, on even a single count, you run the risk of getting slammed for the entire indictment. Not only do ties go to the government, if they even score a run, they win. Anything other than a shut out is a loss for the defense. And that, in turn, makes it virtually impossible to win, but worse, it means that going to trial with a "I did this but not that" defense gets you only a pyrrhic victory. No longer can you reasonably contest a part of the government's case against you at a trial. Well, let me amend that, you can contest it, but it's unlikely to make a difference in how long you go to prison for even if you win.

Your only option? Total victory or plea.

Comments

[graffen48]

I know this is off topic a little , but its kind of depressing everytime i turn on the news, there are so many stories lately about how the cops have shot and killed someone.

[GJMandinka]

HuffPost's Pick

Utterly horrifying. As horrifying as the notion that you could be plucked out of your bed and taken to a location not disclosed to your family, and held indefinitely on suspicion of being or aiding terrorists.
I always wondered if certain drug laws were a deliberate form of disenfranchisement; but that, at least, was within the framework of due process. This seems like a complete abandonment of the concept of process.

[RepublicanBrain]

I've heard of things like this, though this is the first I've heard of this particular incident. The Duke "rape" case comes to mind. You had people like the Group of 88, Nancy Grace, and various Women's studies professors, judging the defendants as guilty before the case even went to trial.

It's not the same thing, I know. But it shows you just how prejudiced some people can really be.

[LeftRight]

Yeah, because the public judging someone to be guilty without any evidence is the same thing as a JUDGE finding someone to be guilty even when the JURY says that same person is not guilty!

[RepublicanBrain]

That's why I said it's not the same thing. It seems you're as good a reader as last I saw you.

Think about it. A judge is only one person, and he can make a ruling. However, the public can do a lot of different things. Throw bricks through your windows, slash your tires, stage protests outside your office.

This judge ruled that the defendant was guilty on charges with no evidence because he was found guilty on something else. The public tends to rule without any evidence at all. Both are horrible, but which is worse?

[LeftRight]

And one more thing. Aren't we assumed to be innocent until proven guilty? This is the reason for the Miranda rights, this is the reason that it's easier to defend a suspected criminal than it is to prosecute them!!!

You better hope that you don't get a bushco(tm) or McBush judge!!!!!!!!!!

[LeftRight]

That's not even a Pyrrhic victory! That's a flat out loss! This is the USA winning every battle in Vietnam, and losing the war. This is the British completely DESTROYING the colonial army, and then giving the colonies up when they come to the negotiating table!

[BusGreg]

The war on drugs has been going on since the first anti-pot law in 1914. Since then we have wasted more money than it would have taken to fix all of New Orleans. And it is our fault for electing the same special interest lackeys year after year.
Here some parallels:
War in Iraq. Based on nothing but lies. 2/3 of us opposed, Billions wasted, if not trillions, The war has been a failure for now 5 years.
People voiced their disgust at the ballotbox in 06.

War on drugs: Based on nothing but lies. 2/3 of the country supports decriminalization of cannabis (not legalization). 75% + support medical Marijuana. Billions of our tax money wasted. The war has been a failure for 94 years!
Yet the voters don't demand a stop to this insanity at the ballot box. At roughly $100 per day per inmate figure the cost for the nearly 800,000 nonviolen drug users currently locked up by the Industrial Prison Complex! It is our money that is being wasted!

[zjr909]

This country has removed even the pretense of the Rule of Law. It's no wonder the President feels free to ignore any law that gets in his way - even the Courts do. They can now make up the law as they go. But I wonder: should that rule also have applied to, say, Scooter Libby? Wasn't he found guilty on some counts, innocent on others? Shouldn't his judge have sentenced him as if he had been found guilty on all counts? A moot point, of course, in light of Libby's commutation. But I seriously doubt any judge will ever sentence any well-placed defendant using poor folk guidelines. Those guidelines are just that: for poor folk.

[hopeless277]

I'll bet that judge has stock in the same company that runs the prison he sent the defendent to. In our wonderful our-sourcing society where people profit by incarcerating other people, it was just a matter of time before the southern chain gangs started cropping up. Now, though, instead of convicting people so they could work for free on the judges farm, they are conviced so that the government can pay the for profit prisons to keep them locked up. The more prisoners, the more money. It's getting harder and harder just to survive much less keep out of the hands of greedy judges and police. Remember 1 out of every 100 Americans IS IN PRISON!!!

[BusGreg]

Right you are! The documentary "American Drug War. The Last White Hope" released in 2007 is a must see. Here are some stats:
America makes up between 4 to 5% of the world's population yet we proudly and gleefully incarcerate more than 25% of the world's prison population. Overall population: China, 1,321,851,888 and the US, 301,139,947 as reported for 2007. The incarceration rate as reported by the UN in 2001 was for China, 1,428,126 and the US 1,962,220. Even China, a nation known for human rights abuses and with over 4 times the population we have, has fewer incarcerated than we do! A report by the PEW Center recently came up with these numbers; 1 out of every 100 adults and 1 in 15 black males over the age of 18 are currently locked up in the United States and we can pride ourselves in this record! We are Number One in the systematic incarceration in the world!