If guilty of a lesser crime, you can be sentenced for a greater

---------- Forwarded message ----------
Date: Tue, 7 Jan 1997 18:44:07 -0800 (PST)
From: Declan McCullagh <declan@well.com>
To: fight-censorship@vorlon.mit.edu
Subject: If guilty of a lesser crime, you can be sentenced for a greater

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."

-Declan

---------- Forwarded message ----------
Date: Tue, 7 Jan 1997 17:41:35 -0800
From: Jim Warren <jwarren@well.com>
Sender: owner-fight-censorship@vorlon.mit.edu

Did you read about the U.S. Supreme Court's recent decision?

Seems they decided it was acceptable for a judge to use crimes for which a
jury has found a defendent *NOT guilty*, to justify imposing greater
penalties than the judge could otherwise, for a lesser crime for which the
jury found the defendent guilty.  (It's quite common to prosecute someone
for multiple crimes, and have the jury find them innocent of some charges,
but guilty of others.) 

Now, all a judge has to do is opine that, in his or her unilateral opinion,
there is a "preponderance of evidence" of guilt of the more serious crime
-- in spite of the unanimous finding by every member of the jury, that the
defendent is NOT guilty of that crime, beyond a reasonable doubt.

The Supreme's *unsigned* 7-2 opinion says than a finding of NOT guilty,
"does not prove that the defendent is innocent; it *merely* proves the
esistence of a reasonable doubt as to his guilt."  [I.e., all U.S. citizens
now risk being penalized as theough they are guilty, unless they can PROVE
they're innocent!]


Much worse, the basis for *criminal* guilt and associated penalties --
charged, prosecuted and imposed using the massive powers and resources of
the State -- has now functionally changed from proof "beyond a reasonable
doubt," to the much lesser standard of, "preponderance of evidence," which
used to be limited only to civil litigation prosecuted between private
attorneys for feuding plaintiffs.

Who says the practices of the Third Reich didn't survive!?

--jim, Amerikan citizen
Jim Warren (jwarren@well.com)
GovAccess list-owner/editor, advocate & columnist (Govt.Technology, MicroTimes)
345 Swett Rd., Woodside CA 94062; voice/415-851-7075; fax-for-the-quaint/<ask>

[Also blind-cc'ed to others.]

Declan McCullagh wrote:
> 
> ---------- Forwarded message ----------
> Date: Tue, 7 Jan 1997 18:44:07 -0800 (PST)
> From: Declan McCullagh <declan@well.com>
> To: fight-censorship@vorlon.mit.edu
> Subject: If guilty of a lesser crime, you can be sentenced for a greater

Hmm. Thanks for keeping the list on-topic.

-rich

-----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.  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
-----BEGIN PGP SIGNATURE-----
Version: 2.6.3
Charset: noconv

iQEVAwUBMtR1hizIPc7jvyFpAQH00ggApVYaNz9FRqQvfgG31vRfTjW5GX8W7YXJ
BIBhoSlh47vzTiFpKGKbEj8VZBk1+khxQTSMNkuau86GZ3Km4JEDMLbBNiJwr3ad
AhcbUHLeIOtoGSnDzNisbmQBv9JVXN9uWLoP9Zq/PWT6XWcR73aX6AkY53n2lYsG
ycbzc7CVGTn3DpIjJeyjkodCVTdJdRNm8zi46v7NH8UyqeS7huRJ0YkwlKqS87It
2IedvlNyc3ZVyTPUX+2pu3NxncefinbnKfCnslJl4A4wKfnVQGLgYDDEgsjoQwPT
kbAuOHULX+iExWcUD+1Zrp2xaOfo8Oxy9XfwSeAwf08mpj6tFkwQxA==
=cFSt
-----END PGP SIGNATURE-----

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.

--
Forward complaints to : European Association of Envelope Manufactures
Finger for Public Key   Gutenbergstrasse 21;Postfach;CH-3001;Bern
Vote Monarchist         Switzerland

Black Unicorn <unicorn@schloss.li> wrote:

>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.

But Putra got the same sentence she would have gotten had she been
convicted on both charges. The fact that she was acquitted meant nothing.

UNITED STATES v. VERNON WATTS
UNITED STATES v. CHERYL PUTRA
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 95-1906.  Decided January 6, 1997

  Per Curiam.

In these two cases, two panels of the Court of Appeals for the Ninth
Circuit held that sentencing courts could not consider conduct of the
defendants underlying charges of which they had been acquitted.
United States v. Watts, 67 F. 3d 790 (CA9 1995) (-Watts-); United
States v. Putra, 78 F. 3d 1386 (CA9 1996) (-Putra-).
[...]
Because the panels' holdings conflict with the
clear implications of 18 U. S. C. 3661, the Sentencing Guidelines,
and this Court's decisions, particularly Witte v. United States, 515
U. S. ___ (1995), we grant the petition and reverse in both cases.
[...]

  Justice Stevens, dissenting.

  The Sentencing Reform Act of 1984 revolutionized the manner in
which district courts sentence persons convicted of federal crimes.
Burns v. United States, 501 U. S. 129, 132 (1991). The goals of
rehabilitation and fairness served by individualized sentencing that
formerly justified vesting judges with virtually unreviewable
sentencing discretion have been replaced by the impersonal interest
in uniformity and retribution.
[...]

                     II

  The issue of law raised by the sentencing of Cheryl Putra involved
the identification of the offense level that determined the range
within which the judge could exercise discretion.  Because she was a
first offender with no criminal history, that range was based
entirely on the offense or offenses for which she was to be punished.
She was found guilty of aiding and abetting the intended distribution
of one ounce of cocaine on May 8, 1992, but not guilty of
participating in a similar transaction involving five ounces of
cocaine on May 9, 1992.  United States v. Putra, 78 F. 3d 1386, 1387
(CA9 1996).  If the guilty verdict provided the only basis for
imposing punishment on Ms. Putra, the Guidelines would have required
the judge to impose a sentence of no less than 15 months in prison
and would have prohibited him from imposing a sentence longer than 21
months.

  If Putra had been found guilty of also participating in the 5 ounce
transaction on May 9, 1992, the Guidelines would have required that
both the minimum and the maximum sentences be increased; the range
would have been between 27 and 33 months.  As the District Court
applied the Guidelines, precisely the same range resulted from the
acquittal as would have been dictated by a conviction.
Notwithstanding the absence of sufficient evidence to prove guilt
beyond a reasonable doubt, the alleged offense on May 9 led to the
imposition of a sentence six months longer than the maximum permitted
for the only crime that provided any basis for punishment.

  In my judgment neither our prior cases nor the text of the statute
warrants this perverse result. And the vigor of the debate among
judges in the courts of appeals on this basic issue belies the ease
with which the Court addresses it, without hearing oral argument or
allowing the parties to fully brief the issues.
[...]

  Even more than Williams, this Court, like all of the Circuits that
have adopted the same approach as the District Courts in these cases,
relies primarily on the misguided five-to-four decision in McMillan
v. Pennsylvania, 477 U. S. 79 (1986). For the reasons stated in my
dissent in that case, id., at 95-104, I continue to believe that it
was incorrectly decided and that its holding should be reconsidered.
Even accepting its holding that the Constitution does not require
proof beyond a reasonable doubt to establish a sentencing factor
that increases the minimum sentence without altering the maximum,
however, there are at least two reasons why McMillan does not dictate
the outcome of these cases.

  In McMillan, as in these cases, the defendant's minimum sentence
was enhanced on the basis of a fact proved by a preponderance of the
evidence. But in McMillan, the maximum was unchanged; the sentence
actually imposed was within the range that would have been available
to the judge even if the enhancing factor had not been proved. In
these cases, however, the sentences actually imposed were higher than
the Guidelines would have allowed without evidence of the additional
offenses. The McMillan opinion pointedly noted that the Pennsylvania
statute had not altered the maximum penalty for the crime committed
and operated solely to limit the sentencing courts' discretion in
selecting a penalty within the range already available to it without
the special finding of visible possession of a firearm. Id., at
87-88. Given the Court's acknowledged inability to lay down any
`bright line' test that would define the limits of its holding, id.,
at 91, and its apparent assumption that a sentencing factor should
not be allowed to serve as a tail which wags the dog of the
substantive offense, id., at 88, see also ante, at 7, n. 2, the
holding should not be extended to allow a fact proved by only a
preponderance to increase the entire range of penalties within which
the sentencing judge may lawfully exercise discretion.
[...]

  In my opinion the statute should be construed in the light of the
traditional requirement that criminal charges must be sustained by
proof beyond a reasonable doubt. That requirement has always applied
to charges involving multiple offenses as well as a single offense.
Whether an allegation of criminal conduct is the sole basis for
punishment or merely one of several bases for punishment, we should
presume that Congress intended the new sentencing Guidelines that it
authorized in 1984 to adhere to longstanding procedural requirements
enshrined in our constitutional jurisprudence. The notion that a
charge that cannot be sustained by proof beyond a reasonable doubt
may give rise to the same punishment as if it had been so proved is
repugnant to that jurisprudence.

On Fri, 31 Jan 1997, rex wrote:

> Black Unicorn <unicorn@schloss.li> wrote:
> 
> >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.
> 
> But Putra got the same sentence she would have gotten had she been
> convicted on both charges. The fact that she was acquitted meant nothing.

That this is true once, does not make it so in all cases.

You also lose sight of the general scheme of things.  That the sentence
imposed may have the same maximum sentence with sentencing enhancements
and a lesser included offense as with conviction of a "great offense"
means nothing with regard to the validity of sentencing enhancements.

That theft and low level bank fraud have the same penality when theft is
enhanced with a "victim was infirm or helpless" or a "firearm was used in
furtherance of the crime" could as easily reflect a lack of vigor and
spite in the prosecution of bank fraud as it could reflect severe vigor  
and spite in the prosecution of theft.

Please note that the difference between:

"But he got the same sentence as he would have if he was convicted of 
carrying a gun in furtherance of the crime."

and

"But he got the same sentence as he would have is he was not convicted of
carrying a gun in furtherance of the crime."

is subtle at best.

Next time don't get caught stealing with a gun nearby.

--
Forward complaints to : European Association of Envelope Manufactures
Finger for Public Key   Gutenbergstrasse 21;Postfach;CH-3001;Bern
Vote Monarchist         Switzerland