From: Black Unicorn <unicorn@schloss.li>
Date: Thu, 9 Jan 1997 15:06:08 -0800 (PST)
To: "Mark M." <markm@voicenet.com>
Subject: Re: If guilty of a lesser crime, you can be sentenced for a greater
In-Reply-To: <Pine.LNX.3.95.970108231558.1800A-100000@eclipse.voicenet.com>
Message-ID: <Pine.SUN.3.94.970109173741.707A-100000@polaris>
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On Wed, 8 Jan 1997, Mark M. wrote:

> Date: Wed, 8 Jan 1997 23:35:35 -0500 (EST)
> From: "Mark M." <markm@voicenet.com>
> To: cypherpunks@toad.com
> Subject: Re: If guilty of a lesser crime, you can be sentenced for a greater
> 
> -----BEGIN PGP SIGNED MESSAGE-----
> 
> 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.

Basically correct.  Lesser included offenses are seperate offenses.
Robbery, as a very mundane example, is a combination of larceny and
assault. If the assault charge cannot be proven, robbery cannot be proven,
but larceny still can independently.

Sentencing enhancements:

There is a big book called the Federal Sentencing Guidelines Handbook (or
some such).  To arrive at the appropriate sentence range, you add up the
points of all the offenses the defendant was convicted of (Assume Bank
Fraud is 18 points, Murder 35 or whatever- I dont remember them offhand)
and run across a chart which has "criminal history catagory" on the
vertical axis.  Where the two meet gives you the sentence range.  I'm not
near my office right now, but if there is enough interest I will dig up
the current handbook and run a sample sentencing through.

The most common one I see is "Victims helpless or infirm" which usually
boosts 2 to 5 points.

Sentencing enhancements are not double jeapordy either.  I don't see how
you can argue they are.  For example, there is a provision in bank fraud
sentencing guidelines which enhances the sentence according to the size of
the loss, and I believe there is a kicker if the financial institution
folds.

I believe the highest base offense level was "Espionage" or some such.

There are also sentencing limiters.  "Defendant displays clear remorse."
I think is one.

Go out to a law book store and take a look at the guideline book.  It's
actually a lot of fun.  "Ok, say I killed my wife for her coke stash and
recruited my brother to dump the body..."

> 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.

They need only be noted as a finding of fact by the jury.  (Or the judge
in other cases).

> 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).

It's both a crime and an enhancement for most federal drug offenses.

> 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.

Well, just about.  The sentencing enhancement might not be enough points
to kick the defendant into the next bracket.  It depends on how many base
offense points the defendant has before you start throwing in
enhancements.  The judge probably would have gotten a higher maximum from
the combined crime, but the jury has to find guilty of that 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.

Well, it can increase the maximum actually, because it actually adds
offense points.

> 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.

Congress has already passed on the sentencing enhancements in most cases,
making them simply "versions" of crimes.

If you want to look at it a different way, if you are involved with a drug
offense and are not using a weapon, you'll get a lower sentence than a
full fledged drug crime.  It's a step in the right direction - i.e. away
from manadatory sentencing of a flat time period for a crime regardless of
circumstances.

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