From: "Mark M." <markm@voicenet.com>
Date: Wed, 8 Jan 1997 20:31:18 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: If guilty of a lesser crime, you can be sentenced for a greater
In-Reply-To: <Pine.GSO.3.95.970107184550.4939C-100000@well.com>
Message-ID: <Pine.LNX.3.95.970108231558.1800A-100000@eclipse.voicenet.com>
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On Tue, 7 Jan 1997, Declan McCullagh wrote:

> 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."

IANAL, but this ruling is not as bad as it may seem.  If I read it correctly,
the ruling says that a judge is allowed to consider offenses related to the
crime for which the defendant was convicted regardless of whether or not the
defendant was acquitted of those charges.  Judges are allowed to consider past
criminal convictions or behavior relevant to the crime for which the defendant
was convicted during sentencing.  Sentencing guidelines instruct the judge on
how severe or lenient a sentence should be based on the severity of the offense
and past criminal record.  These facts to not have to be true beyond a
reasonable doubt.

In one case, the defendant was convicted of possession of cocaine with intent
to distribute but was found not guilty of possession of a firearm related to
a drug charge (apparently, this is a crime).  The jury decided that there was
reasonable doubt as to whether the gun had anything to do with the drug
offense.  However, the defendant was sentenced according to the recommended
sentence for someone convicted of a drug offense when there is a weapon
involved.  If possession of a firearm related to a drug offense had not been
a crime, the judge would have been able to give the defendant the same sentence
without having proof that there was not reasonable doubt as to whether the gun
was related to the drug offense.

All this ruling really does is it gives the judge the power to consider all
facts, including those found by a jury to be doubtable, when sentencing the
defendant.  It doesn't allow the judge to sentence the defendant to a higher
punishment than the maximum sentence.  This is a power that judges have when
the defendant does something legal, but has connection to the actual crime.
This ruling just extends that power to include when the action in question is
illegal.


Mark
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