Michael Hurn was in deep trouble.  He was on trial for possession with intent to distribute 150 grams of powder cocaine, and 450 grams of crack cocaine base.  As anyone who’s familiar with Federal sentencing knows, the powder cocaine was the least of his worries; a conviction on that would have meant a sentence of between 27 and 33 months.  The crack cocaine, on the other hand, would result in a prison sentence of close to two decades.  So he must have been mighty relieved when the jury bought his argument that the crack cocaine belonged to other people who lived in the house the police raided, and acquitted him of that charge.

Then the probation officer prepared a report concluding that the preponderance of the evidence presented at trial showed that Hurn had possessed the crack, too.  The trial judge agreed, and imposed an 18-year sentence, which was affirmed by the 4th Circuit.  Earlier this week, the Supreme Court denied certiorari.

Now, if you’re like me, that second paragraph made your head start to throb.  How does a judge sentence a defendant for a crime on which he was acquitted by a jury?  Especially by concluding that there’s a “preponderance of the evidence” that the defendant committed the crime?  Whatever happened to reasonable doubt?

What happened to it is a decision by the US Supreme Court back in 1997, US v. Watts, in which the 9th Circuit had reversed a couple of sentences because the judge had indicated that the sentence was partially based on charges on which the jury had acquitted the defendant.  Up to that point, there’d been little dispute that a trial judge could take into consideration charges that could have been, but weren’t, filed against the defendant in the present case, or even charges which had been dismissed as a result of a plea bargain. 

That’s a defensible position.  If, say, a defendant is charged with a 2nd degree drug trafficking charge, and pleads out to a 4th degree, it’s understandable that a judge might say, “I’m going to give you a maximum sentence, because I think you got your break by getting a reduction of the charge, and doing 18 months in prison instead of four or five years is the only break you deserve.”  It’s also understandable that a judge might give a person with a history of arrests a longer sentence than someone whose criminal history was spotless.

Watts went well beyond that, though, engaging in a lengthy analysis of the Federal Sentencing Guidelines, and concluding that since the sentencing enhancements — additional levels for the amount of the drug possessed, for example, or the amount of the money stolen — only required proof by a preponderance of evidence, the judge could use the same standard in determining other criminal activity.  The Court in Watts decided that the trial court could  ”rely on the entire range of conduct” presented in the case, not just the charges on which the defendant was convicted.

Again, there’s an argument to be made here, and it’s not as outlandish as it would appear on first blush.  After all, the defendant is still being sentenced within the statutory guidelines of the offense for which he was convicted.  In the example I gave above, for example, it’s not as though the trial judge said, “Even though you’ve pled to a fourth degree felony, I’m going to sentence you four years, because I think you’re really guilty of a second-degree felony.

Still there’s something not quite right about this, especially in light of the Supreme Court’s jurisprudence on sentencing over the past seven years.  You have Apprendi, where the Supreme Court said that a judge couldn’t impose a sentencing enhancement for ethnic intimidation because that wasn’t a fact found by a jury.  You have Blakely, where the Supreme Court held that a judge couldn’t impose an additional sentence for having committed a crime with “extra cruelty,” because that wasn’t a fact found by a jury.  You have Booker, where the Supreme Court threw out 20 years of Federal Sentencing Guidelines, holding that they were advisory rather than mandatory because it was constitutionally impermissible for a judge to impose a sentence based on findings not made by a jury.  But it’s okay to give a guy an additional 16 years in prison because the judge thinks he’s guilty, even though the jury determined that he wasn’t?

In fact, this theory was extended even farther in a case that Doug Berman picked up the other day on his Sentencing Law and Policy blog, US v. Ibanga, in which the 4th Circuit ruled that the district erred by refusing to consider acquitted conduct in determining a sentence.  It held that because the trial court found, by a preponderance of the evidence, that Ibanga had committed drug trafficking, despite a jury verdict to the contrary, the court was dutybound to consider that conduct in framing a sentence.  So now, not only is a judge permitted to give a defendant extra time despite the jury’s verdict, he may be wrong in failing to do so.

There may be a fine line between sentencing based on charges that were dismissed or charges that were reduced through plea-bargaining on the one hand, and charges for which the defendant was acquitted on the other.  But it’s a line that ought to be drawn nonetheless.  If something doesn’t sound fair, it probably shouldn’t be legal to do it.  There’s an old cartoon I remember where the judge says to the defendant, “The jury found you ‘not guilty,’ but I’m going to give you two years just to be on the safe side,” and the current law on sentencing for acquitted conduct comes perilously close to that.