From: Declan McCullagh <declan@well.com>
Date: Tue, 7 Jan 1997 18:47:30 -0800 (PST)
To: cypherpunks@toad.com
Subject: If guilty of a lesser crime, you can be sentenced for a greater
Message-ID: <Pine.GSO.3.95.970107184550.4939C-100000@well.com>
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---------- Forwarded message ----------
Date: Tue, 7 Jan 1997 18:44:07 -0800 (PST)
From: Declan McCullagh <declan@well.com>
To: fight-censorship@vorlon.mit.edu
Subject: If guilty of a lesser crime, you can be sentenced for a greater

The Supreme Court ruled on this sentencing case yesterday. Kennedy and
Stevens -- hardly known as civil libertarians -- dissented. The Court
reversed the 9th Circuit, ruling the lower court was wrong to say that
such a practice "would make the jury's findings of fact pointless." The
court declared: "Sentencing enhancements do not punish a defendant for
crimes of which he was not convicted, but rather increase his sentence
because of the manner in which he committed the crime of conviction."

Double jeopardy? What's that?

Of course it was a drug crime. The defendant, Vernon Watts, was convicted
of cocaine possession with intent to distribute. To paraphrase another
saying: "'Drug Trafficking Offense' is the root passphrase to the
Constitution."

-Declan

---------- Forwarded message ----------
Date: Tue, 7 Jan 1997 17:41:35 -0800
From: Jim Warren <jwarren@well.com>
Sender: owner-fight-censorship@vorlon.mit.edu

Did you read about the U.S. Supreme Court's recent decision?

Seems they decided it was acceptable for a judge to use crimes for which a
jury has found a defendent *NOT guilty*, to justify imposing greater
penalties than the judge could otherwise, for a lesser crime for which the
jury found the defendent guilty.  (It's quite common to prosecute someone
for multiple crimes, and have the jury find them innocent of some charges,
but guilty of others.) 

Now, all a judge has to do is opine that, in his or her unilateral opinion,
there is a "preponderance of evidence" of guilt of the more serious crime
-- in spite of the unanimous finding by every member of the jury, that the
defendent is NOT guilty of that crime, beyond a reasonable doubt.

The Supreme's *unsigned* 7-2 opinion says than a finding of NOT guilty,
"does not prove that the defendent is innocent; it *merely* proves the
esistence of a reasonable doubt as to his guilt."  [I.e., all U.S. citizens
now risk being penalized as theough they are guilty, unless they can PROVE
they're innocent!]


Much worse, the basis for *criminal* guilt and associated penalties --
charged, prosecuted and imposed using the massive powers and resources of
the State -- has now functionally changed from proof "beyond a reasonable
doubt," to the much lesser standard of, "preponderance of evidence," which
used to be limited only to civil litigation prosecuted between private
attorneys for feuding plaintiffs.

Who says the practices of the Third Reich didn't survive!?

--jim, Amerikan citizen
Jim Warren (jwarren@well.com)
GovAccess list-owner/editor, advocate & columnist (Govt.Technology, MicroTimes)
345 Swett Rd., Woodside CA 94062; voice/415-851-7075; fax-for-the-quaint/<ask>

[Also blind-cc'ed to others.]