When Not Guilty Can Mean More Prison Time

Sept. 16, 2008— -- When Roger White helped his brother and his brother's girlfriend rob a bank in Maysville, Ky., he led police on a high-speed, 17-mile chase down country roads before he finally crashed his car and was caught.

At his 2003 trial, White, the getaway driver, was convicted of aiding the bank robbery, but the jury acquitted him of several other charges involving the use of a gun during the robbery and escape.

Nevertheless, a judge found that there was sufficient evidence that shots were fired during the robbery and subsequent police chase to add nearly 14 years onto White's prison sentence, more than doubling it – even though a jury found White not guilty of most of the gun charges.

White's case, now pending before the Sixth Circuit Court of Appeals, raises questions about whether defendants should be sentenced to longer prison terms based on evidence that a jury either never heard or has rejected.

Several federal judges have said the practice violates the constitutional right to a jury trial and a few have called on the Supreme Court to reconsider its 1997 decision, in U.S. v. Watts, upholding increased prison sentences based on so-called "acquitted conduct."

"[W]e have a sentencing regime that allows the government to try its case not once but twice. The first time before a jury; the second before a judge," Judge Myron Bright of the federal Eight Circuit Court of Appeals recently wrote.

"This state of affairs is unfair, unjust and I believe plain unconstitutional," he wrote. "Though the government might have 'won,' everyone and everything else – the defendant, the jury system, the Constitution – loses."

White's case is being closely watched by sentencing experts, who say it could pressure the Supreme Court to revisit its brief, unsigned opinion in Watts. Two appellate judges on the Sixth Circuit have said they would throw out White's enhanced sentence; if the full panel agrees, it would put the court at odds with the other federal appellate courts that have considered the issue.

The Supreme Court has called the right to a jury trial one of the foundations of American law. But at same time, the Court has given judges broad discretion in meting out sentences under the now-advisory federal sentencing guidelines, allowing them to consider conduct that the jury never considered or found a defendant not guilty of committing.

The issue has come up in several recent cases around the country. Earlier this year, in the case of a Madison, Wis., man who was sentenced to an additional 15 years in prison for possession of crack cocaine, the Supreme Court declined to reconsider its Watts decision. Mark Hurn was convicted of possessing powder cocaine, which would have sent him to prison for about three years, according to federal sentencing guidelines, but acquitted of crack cocaine possession. He was sentenced to 18 years in prison.

In Washington, D.C., federal prosecutors are asking a judge to sentence Antwuan Ball to the 40-year statutory maximum prison sentence for selling 11 grams of cocaine, though Ball was acquitted of every other count in a massive drug and murder conspiracy trial that lasted eight months. Ball's lawyer says Ball should be sentenced to about six years in prison under the sentencing guidelines for the drug charge.

"The government is trying to get Antwuan Ball sentenced based on what they charged him with rather than what he was convicted of," said Steven Tabackman. "Those charges in many respects were ultimately without any basis whatsoever."

"It is a sentencing scheme straight from the mind of Lewis Carroll," he wrote in recent court papers, referring to the author of "Alice in Wonderland."

All of the sentences are within the statutory maximum and every federal appeals court to take up the issue recently has said that judges can consider a range of conduct that has not been proven at trial.

Prosecutors have said Ball and his associates are responsible for distributing large quantities of crack cocaine in a Washington neighborhood and remain dangerous. They also say their sentencing recommendation is based, in part, on actions for which Ball was never charged or on which the jury never voted, not for which he was acquitted.