When Not Guilty Means Guilty

The U.S. Supreme Court’s decision on sentencing this week is hardly surprising. Ruling that judges can increase the sentences of criminals on the basis of other charges of which they were acquitted, the court Monday affirmed a rule that all circuits but one already follow. If unsurprising, the decision nonetheless only seems fair once safely inside the curious world of the federal sentencing guidelines, a world where fundamental legal precepts seem quaintly unfit for front-line duty in the drug war.

Judges have historically weighed a wide range of information in determining a defendant’s sentence, including the circumstances of the crime, his or her criminal history and prospects for rehabilitation. Those factors can increase or decrease the severity of a sentence.

On its face, then, the court’s 7-to-2 decision affirms this tradition of considering a defendant’s good conduct as well as his prior convictions--and even acquittals--in fashioning a sentence. An “acquittal on criminal charges does not prove that the defendant is innocent,” said the unsigned majority opinion.

But to Justice John Paul Stevens, who dissented, as did Justice Anthony M. Kennedy, this “perverse result” is comprehensible only by reference to the Alice-in-Wonderland sentencing scheme that Congress set in motion in 1984. Congress sought to end escalating illegal drug use and what it saw as unacceptable judicial disparity in sentencing for those crimes. Judges now look up the crime in sentencing tables, increasing or decreasing the prescribed term based on relevant conduct or facts.

But the guidelines are rife with inequities. For example, a defendant must be caught with more than a pound of powdered cocaine to draw the same mandatory five-year prison term that applies to conviction for possession of less than an ounce of crack cocaine. Until recently, judges could weigh the material, such as blotter paper or the lining of a suitcase, in which LSD was imbedded to calculate the prison term; the heavier the material--regardless of the amount of the drug--the longer the sentence. And judges generally apply mitigating factors to increase sentences and only rarely to decrease them.

Now apparently, under the guidelines, a jury’s verdict of not guilty under the standard criminal burden--proof beyond a reasonable doubt--can still mean guilty. The high court’s decision involves two drug cases, one from California. The defendant in that case was convicted of possessing cocaine with intent to distribute but was acquitted of using a firearm in relation to a drug offense. Despite acquittal, the federal trial judge found by a “preponderance of the evidence” that the defendant possessed two loaded guns, discovered in a bedroom in his home, and therefore added time to his sentence.

The Supreme Court overturned a 9th Circuit Court of Appeals order for resentencing in this case. The high court affirmed that judges may indeed increase a sentence if they determine by a preponderance of evidence that the defendant had committed a prior crime despite acquittal on that charge. This looser standard for sentencing is troubling enough, in large part because it seems to undermine the sanctity of the jury’s verdict at trial. But more disturbing, the high court issued this important decision without the benefit of briefs or arguments.

The decision comes as the U.S. Sentencing Commission is coincidentally considering limiting the use of acquitted conduct at sentencing. The commission should do so. And Congress should finally intercede and return some integrity to our criminal sentencing laws.