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April 1, 2008

LA Times coverage of SCOTUS acquitted conduct dodge

I noted in this post that Supreme Court yesterday denied cert in the Hurn acquitted conduct case and in a few other acquitted conduct cases.  Providing a useful follow-up, SCOTUS reporter David Savage has this new piece in the Los Angeles Times headlined "Judges can still punish acquitted defendants."  Here is how the article starts:

The Supreme Court declined Monday to reconsider a legal rule that might surprise most Americans: Judges can punish defendants for certain crimes even after a jury has acquitted them of those charges.

In recent years, the justices have described the right to jury trial as one of the bedrock principles of American law.  At the same time, they have been unwilling to say that a jury's not-guilty verdict on some charges means the defendant cannot be punished.  Instead, the court has said judges may take into account "acquitted conduct" when they decide on a prison term.

The case of Mark Hurn of Madison, Wis., provides a stark example of the rule.  Hurn was given an additional 15 years in prison for possessing crack cocaine, even though a jury acquitted him of the charge.  He was convicted of having powder cocaine in his house, a charge that would warrant between two and three years in prison under federal sentencing guidelines. But he was sentenced to nearly 18 years in prison, as though he had been convicted on both counts.  "This was an extraordinary increase," said Elizabeth Perkins, a lawyer in Madison who filed his appeal. "Allowing a sentencing judge to disregard the verdict of the jury is very disappointing."

As regular readers know, this is an issue I find very interesting and important.  And I remain hopeful that the Sixth Circuit, which will take on these issues soon in the en banc case White, will issue an interesting and important decision that may finally force the Justices to connect its Blakely rhetoric to federal sentencing realities.

Some related posts on acquitted conduct enhancements after Booker:

April 1, 2008 at 09:48 AM | Permalink


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Relatedly, the Fourth Circuit reversed (in an unpublished opinion) _US v. Ibanga_,454 F.Supp.2d 532 (ED Va. 2006), in which the district court varied from a Guideline range jacked up due to acquitted conduct. The Fourth's decision is here:http://pacer.ca4.uscourts.gov/opinion.pdf/064738.U.pdf

Posted by: JDB | Apr 1, 2008 3:32:02 PM

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