The  Los Angeles Times reports that the Supreme Court has declined cert in the case of Mark Hum, who was sentenced to 18 years rather than 3 based upon a crack count.  The only problem is that he beat the crack count, as if that mattered.

WASHINGTON — 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.

Sentencing based upon acquitted conduct is one of the most insidious and unjustified mechanisms in federal court.  There is simply no legitimate justification, no rational explanation, for it.  The public is astounded by it.  So are criminal defense lawyers, though likely more outraged than surprised.  It’s patently offensive and flagrantly wrong.

And it’s the law.

Doug Berman, with whom I’ve had occasional disagreements on policy, is  right on target on this one.  Read Doug’s post for his additional background on the subject and other cases where the issue arose.

The question remains, why did SCOTUS refuse to hear this case?  While it could be for technical reasons, such as an inadequate record, it doesn’t appear likely.  I hate to be cynical (I really do), but it’s impossible in this instance.   Particularly in a case where the issue presents so clearly and distinctly:  3 to 18 years is a huge gap.  What point is there in a trial, a verdict, all the varied protections that we write about, ponder, research, and argue, if at the end of the trial, the court sentences the defendant no differently than had he been convicted.  It renders the entirety of what we do a farce.

Due to my limited imagination, I can think of only one reason why the Supreme Court refused to hear this case.  They were unable to must the votes to change this atrocity and are unable to think of any potential argument to justify it.

Harlan Protass of  Second Circuit Sentencing Blog  expressed the problem well:

Acquitted conduct sentencing … goes against virtually everything we know and respect about the American criminal justice system.  We understand that the government cannot lock people up unless and until guilt has been proven to a jury beyond a reasonable doubt.  We also understand that the American criminal justice system would rather free a guilty person than imprison an innocent one.  Sentences based on acquitted conduct erode these principles and, with them, our respect for the law….

We’ve been taught from a young age that juries are the bedrock of the judicial system, and that we should take pride in the system’s inherent fairness.  But acquitted conduct sentencing effectively nullifies jury verdicts and allows judges to usurp the jury’s fact-finding role — no need for juries at all if a sentence can be based on conduct of which a defendant was found not guilty. This upsets the delicate balance that the founding fathers struck when framing the U.S. Constitution. As Alexander Hamilton put it, “arbitrary punishments upon arbitrary convictions” are the “great engines of judicial despotism.”…

It’s bad that such a thing as acquitted conduct sentencing exists.  It’s worse that the Supreme Court won’t even consider it.  When that happens, it falls into the netherworld of hopelessness, and undermines the integrity of the criminal justice system and our efforts to protect and defend the Constitution and our clients. 

So this blight on the system continues, without the hope of review.  For now.