Comments on: Doing Time For Acquitted Crimes

Doing Time For Acquitted Crimes

Appropriate Username — Thu, 14 May 2009 16:25:03 -0800

If you have been charged with multiple crimes and not convicted on all charges, the judge may increase your sentence based on 'acquitted conduct', the crimes for which you were not convicted. This policy is beginning to get a lot more attention due to Jim Caron, writing to a U.S. District Court judge as 'Juror No. 6' and recently highlighted by articles in the Washington Post and the Washington Times. His offense at the idea that his work as a juror had been nullified by this policy has opened a can of worms with all sorts of people who view this "in terms of defendant's rights versus government interests." Too late for Mr. Caron, a distinguished agricultural economist with the USDA, who died suddenly last year.

By: qvantamon

qvantamon — Thu, 14 May 2009 16:31:30 -0800

I'm now adding MURDER OF THE ENTIRE HUMAN RACE to any accusation I ever bring to court. They'll probably be acquitted of this one, but I'm shooting to adding at least 5 years in Walla Walla for people who change lanes without signaling.

By: kldickson

kldickson — Thu, 14 May 2009 16:36:12 -0800

WAIT WAIT WHAT?!

By: brundlefly

brundlefly — Thu, 14 May 2009 16:47:20 -0800

What the hell? That's ridiculous.

By: adamdschneider

adamdschneider — Thu, 14 May 2009 16:51:24 -0800

After reading many of the links, it doesn't appear as ridiculous as I thought at first blush, but it still strikes me as a dubious circumvention of double jeopardy.

By: fuq

fuq — Thu, 14 May 2009 16:52:10 -0800

~~Innocent until proven~~ guilty. Didn't Franz Kafka write a story about this? (I'm not making reference to "The Trial" I am referencing the spirit of his other short stories)

By: coolguymichael

coolguymichael — Thu, 14 May 2009 16:53:32 -0800

By: BrotherCaine

BrotherCaine — Thu, 14 May 2009 17:05:48 -0800

It seems that the Supreme court ruled in US vs. Vernon Watts that sentencing only requires a preponderance of evidence standard rather than beyond a reasonable doubt standard. However, doesn't this effectively deny the defendant their right to trial by a jury of their peers? Shouldn't any additions to the sentence based on a preponderance of evidence standard require an additional juried trial based on a preponderance standard? Is this avoided because of double jeopardy?

By: tehloki

tehloki — Thu, 14 May 2009 17:12:14 -0800

coolguymichael: It's called the maximum sentence, not the recommended sentence, for a reason. It's not like possibility of rehabilitation increases linearly with time incarcerated. Of course, it's a much worse punishment, but that's not what the American criminal justice system is about, right?

By: path

path — Thu, 14 May 2009 17:16:57 -0800

I'm not sure this connects, but I have a relative who's pled out on at least a dozen of meth-possession charges and being under the influence over the last 10 years, and pled guilty to felony charges like forging checks on his grand mother's account and assault. If the judge increased his sentences because the evidence for the "dismissed in the interest of justice" charges was pretty irrefutable, I'm greatful.Since I was one of his assault victims, I'd like to see him in prison as long as possible, and his use of meth makes him crazy.

By: Avenger

Avenger — Thu, 14 May 2009 17:17:34 -0800

the judge may increase your sentence based on 'acquitted conduct', the crimes for which you were not convicted. wait, what wait is this the alternate America where the Nazis won WWII? the guy at the flea market told me it was a "real" dimensional portal but christ that fucker wasn't lying this time

By: jet_silver

jet_silver — Thu, 14 May 2009 17:19:05 -0800

If I understand the logic correctly, someone haled into court on twenty counts of selling drugs and one count of jaywalking could, upon being convicted of jaywalking only, be sentenced as much as is allowed by law for jaywalking. The WP article points this out. It probably means that the maximum penalty for selling $600 worth of crack is much greater than people suspect based on what's usual.

By: shen1138

shen1138 — Thu, 14 May 2009 17:25:43 -0800

If anything, I'd like to see EVERY violent criminal given the max unless there's a really good reason NOT to. Did you read the juror's letter? He explicitly lays out why the jury rejected all the claims of violence alleged by the prosecutor. The point is that they got convicted of selling an amount of drugs that would fit in a couple of sugar packets, but got 16 years for it, based on crimes they were acquitted of. In other words, these were NOT violent criminals, according to 12 jurors who spent over 2 months deliberating that very issue.

By: yeloson

yeloson — Thu, 14 May 2009 17:40:07 -0800

Hmm. Somehow I feel this won't be applied to our previous torture regime.

By: BrotherCaine

BrotherCaine — Thu, 14 May 2009 17:40:22 -0800

I used to think there was some kind of underlying ideal in the US justice system of a jury of your peers being the highest law of the land. Between acquitted conduct and the increasingly hostile attitude towards jury nullification, I'm thinking that the state will continue to accrue power to itself until our rights are watered down to meaninglessness.

By: delmoi

delmoi — Thu, 14 May 2009 17:40:51 -0800

Hmmm - convicted of a crime, and given the maximum penalty allowed by law. No matter what the reason for being given the max, I'm having a hard time having a problem with this. If anything, I'd like to see EVERY violent criminal given the max unless there's a really good reason NOT to.

Except that he wasn't a violent offender. So wtf are you talking about? Oh yeah the tough on crime bullshit where once anyone commits any crime no matter how small we ought to lock them up and throw away the key. Unless it happens to someone in your family, which is becoming more and more common as more and more people get locked up. -- The other problem here is that prosecutors like to lard up charges in order to scare people into accepting a plea deal, so you wind up with all kinds of charges. There was a case a while back about a research scientist who had been mailing biological samples of diseases through the mail with other researchers (no one was hurt or anything like that). The feds busted him and in their post 9/11 zeal charged him with all kinds of crazy shit, and were only able to convict him on a few minor charges. But he still got a long jail sentance out of it.

By: klangklangston

klangklangston — Thu, 14 May 2009 17:50:05 -0800

Yeah, this seems kind of crazy. I can understand some justifications—the plead out mentioned by Path—but even then, what that really argues for is better initial applications of sentencing. And the TOUGH ON CRIME bullshit is incredibly stupid. I was just doing some research on recidivism stats here in California, and I kind of feel like a lot of this is people not understanding how probabilities work—It really does make much more sense to try to reduce the amount of time spent incarcerated or under state supervision (California has some weird-ass parole laws) for everyone involved, but that does mean there'll always be cases where some dude just released rapes and murders some buncha kindergartners or whatever, and everyone reacts to the extreme of wanting to LOCK UP EVERYONE FOREVER.

By: Max Power

Max Power — Thu, 14 May 2009 17:56:50 -0800

Welcome to the "strict constructionalist" view of the world.

By: saslett

saslett — Thu, 14 May 2009 18:06:34 -0800

BrotherCane, it doesn't deny the defendant the right to trial by jury. Sentencing has long been an open-ended inquiry a lesser standard of proof than a jury trial (i.e. preponderance of the evidence), and information not presented at trial---even witness statements that you've never cross-examined--can come in during sentencing to increase your punishment for the crime you were convicted of even though the evidence pertains to evidence other crimes for which you have never been convicted. It's not uncommon for people to be sentenced to death in part due to this type of evidence. Acquitted conduct evidence is arguably a less serious subset of this type of evidence because at least you had a chance to confront the evidence at trial. The reason it doesn't pose a constitutional problem is that a jury that's acquitted you has only found that you didn't commit the crime beyond a reasonable doubt; it doesn't mean that they also found that you didn't commit the crime by a preponderance of the evidence. Had preponderance of the evidence been the standard at trial, they might have actually convicted you. That's not to say there aren't arguments for why considering acquitted conduct evidence at sentencing is unconstitutional. There are, but they haven't been accepted by courts. Though acquitted conduct evidence is troubling, I'm way more concerned about un-cross-examined evidence at sentencing generally, particularly capital sentencing. In fact, I authored a seminar paper in law school (written in the form of a faux Supreme Court opinion) addressing this very topic. It should be understandable to a lay person; if you're interested in reading it, you can download it here.

By: saslett

saslett — Thu, 14 May 2009 18:10:37 -0800

Ugh. "Sentencing has long been an open-ended inquiry *subject to* a lesser standard of proof..."

By: BrotherCaine

BrotherCaine — Thu, 14 May 2009 18:20:32 -0800

Saslett, IANAL, but I'd argue that the evaluation of whether a preponderance of evidence standard has been met is the equivalent to subjecting the defendant to a bench trial on those charges. The judge is substituting himself for the jury to make findings of fact on a preponderance of evidence basis without the defendant waiving his right to a trial by jury. I'm not sure I fully understand sentencing enhancements, but I guess the way I feel about it is that if the judge allows such evidence in choosing a maximum sentence within whatever window he'd normally have been allowed for conviction of that crime alone, it is acceptable. If the judge puts in place enhancements that are related to statutes that the defendant has not been convicted under it's a violation of presumption of innocence.

By: flarbuse

flarbuse — Thu, 14 May 2009 19:06:51 -0800

At least the case got to a jury. I have a client who is charged with having sex with his daughter when she was twelve. She is now fifteen and has made this allegation, leading to his arrest. Prior to his arrest, her boyfriend and his friend went to my client's house with baseball bats. The beat him with the bats, and dragged him toward the road until someone called the police. My client suffered a broken leg, broken ribs, and numerous other injuries. He spent two months in the hospital. Upon being released from the hospital, he went to the police and the two attackers were charged with felony assault charges. Shortly thereafter, my client was charged with the sex offense. He is in jail now awaiting trial for the sex offense case. Today was the court date for the assault cases against the boyfriend and his friend. The DA's office elected to dismiss the case. To put it mildly, I was not pleased. I told the DA that this was just the same as dismissing a case against a white defendant in the fifties because the victim was black. It was the DA's office making a value judgment about their victim. Apparently, all victims are not created equally.

By: saslett

saslett — Thu, 14 May 2009 19:22:32 -0800

BrotherCaine, you've got the law exactly right. The judge can use acquitted conduct and other unconvicted bad acts to increase a defendant's sentence up to the maximum for the crime for which he was convicted. However, the judge can't enhance the defendant's sentence above the maximum by finding that the defendant committed other crimes or by tacking on sentencing enhancements that raise the penalty above the maximum; doing *that* violates the defendant's jury trial right. Take a look at Apprendi v. New Jersey, a 2000 case in which the Supreme Court laid down that rule. It's also discussed in my paper. The case is also known for the unusual lineup of justices in the majority: Stevens, Souter, Scalia, Thomas, and Ginsburg.

By: Caduceus

Caduceus — Thu, 14 May 2009 20:09:27 -0800

Hmmm - convicted of a crime, and given the maximum penalty allowed by law. No matter what the reason for being given the max, I'm having a hard time having a problem with this. If anything, I'd like to see EVERY violent criminal given the max unless there's a really good reason NOT to. I love how these threads about the ways criminals are tried always bring out people I've never ever seen before arguing for gross violations of rights, because obviously if they're being taken to trial they're clearly criminals, right?

By: seanmpuckett

seanmpuckett — Thu, 14 May 2009 20:27:57 -0800

By: Crabby Appleton

Crabby Appleton — Thu, 14 May 2009 20:39:17 -0800

Caduceus, if you consider how many hours of pro-police propaganda are on TV every week, it becomes a little easier to understand (but no less pernicious).

By: MrLint

MrLint — Thu, 14 May 2009 20:55:19 -0800

If anything, I'd like to see EVERY violent criminal given the max unless there's a really good reason NOT to. Well considering that cops seems to think that disagreeing with them is resisting arrest. be careful what you wish for. I'll grant I'm using a generalization brush here, but when you read the copious stories of the ongoing 'War on Cameras' and the BART transit cop incident, you can't help but become concerned about what are the real crimes, vs what they are charged with.

By: Blazecock Pileon

Blazecock Pileon — Thu, 14 May 2009 21:15:10 -0800

Dude, we got a prison-industrial complex to feed.

By: pyramid termite

pyramid termite — Fri, 15 May 2009 00:39:40 -0800

how can it be conduct if you've been acquitted of it? this is orwellian

By: Appropriate Username

Appropriate Username — Fri, 15 May 2009 04:20:33 -0800

saslett, I'd be interested in hearing your opinions about §5K2.21. Dismissed and Uncharged Conduct. Where should the line be drawn on punishing people for the things they weren't convicted of? Wearing my iAnal, despite its uncomfortable form factor and white earbuds.

By: malocchio

malocchio — Fri, 15 May 2009 07:31:40 -0800

It's my understanding that a guaranteed way of getting off of any jury is to mention the phrase "Jury Nullification" during your first interview. Judges and prosecutors don't like it when jurors actually know how to wield power; they just want rubber stamps. Yeah, when I served on a jury, some jackass was excused from the panel by bringing this up. Now, I've been fully aware of jury nullification for a long time, and I would have been prepared to use it in a case where I believed the law to be unjust. But this was a murder trial, and it's a pretty far stretch to invoke jury nullification in such a case. The jackass that was excused seemed to merely looking for an excuse not to be personally inconvenienced by serving on a jury. I guess his time was just that more important than my own, and more important than abstract notions of justice or civic duty.

By: bitmage

bitmage — Fri, 15 May 2009 08:23:22 -0800

Malocchio, I'd do the same thing. Not because I'm 'merely looking for an excuse not to be personally inconvenienced', but because of the Kriho case. If revealing knowledge of jury nullification after voire dire risks contempt charges, you can be dang sure I'm going to notify the court up front. If they choose to dismiss me because I'm aware of my rights and responsibilities as a juror, well, their choice. I feel that the concept of a 'blank slate' jury is on a collision course with technology. It's becoming less realistic to expect people to not learn anything about the case other than what you hear at the trial, not google the concepts, etc. But I don't have an easy fix for it.

By: malocchio

malocchio — Fri, 15 May 2009 09:09:34 -0800

I can't click on the Kriho link here from work, because Websense has it catogorized as "Abused Drugs," so I'm assuming it was a drug related case. In which case, I understand your point, and I would have raised the issue myself, since I am strongly pro-legalization of recreational drugs, and I would have an issue with casting a guilty verdict in a case that I do not view as a crime against society. But we knew during voir dire that this was to be a murder case, and it's hard for me to imagine any legitimate argument that our laws against murder are somehow so unfair and fundamentally injust that jury nullification is a legitimate option in such a case. If you have a prejudice that will reasonably affect your ability to render a fair and impartial decision, then by all means, you should raise the issue during jury selection. But using jury nullification as a "get out of jury duty free" card is disrespectful to the instances where it has a legitimate and moral use, and I think a lot of people use it in exactly that manner.