New law to allow Judges to still punish acquitted defendants

In refusing to consider a Wisconsin man's appeal, the Supreme Court says jurists can issue prison sentences even if the jury has cleared a defendant of certain crimes.
By David G. Savage, Los Angeles Times Staff Writer
April 1, 2008
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.

The case of Mark Hurn of Madison, Wis., provides a stark example of the rule.

Hurn was given an additional 15 years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. He was convicted of having powder cocaine in his house, a charge that would warrant between two and three years in prison under federal sentencing guidelines.

But he was sentenced to nearly 18 years in prison, as though he had been convicted on both counts.

"This was an extraordinary increase," said Elizabeth Perkins, a lawyer in Madison who filed his appeal. "Allowing a sentencing judge to disregard the verdict of the jury is very disappointing."

In 1997, the high court endorsed the acquitted conduct rule in a California case, but the justices did so in a brief, unsigned opinion. They agreed judges can decide on the sentence for a convicted criminal by "relying on the entire range of conduct" presented by prosecutors, not just the charges that resulted in guilty verdicts. In recent years, the rule has allowed judges to give defendants long prison terms even when a jury rejected key parts of the prosecution's case.

[link to www.latimes.com]