When Not Guilty Can Mean More Prison Time

"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.

The Justice Department declined to comment on the White and Ball cases, but in court papers government lawyers argue that sentencing for "acquitted conduct" has been upheld by the Supreme Court.

"[T]he Constitution does not prohibit a sentencing court from considering conduct that was not found by the jury, as long as the court does not impose a sentence above the statutory maximum for the offense of conviction," government attorneys wrote in a recent brief in the White case.

"As the Supreme Court has made clear, a verdict of not guilty represents at most a finding that the government did not prove its case beyond a reasonable doubt; it is not a finding that the defendant is innocent," they wrote.

"Judges have been considering all sorts of information about each offender for a very, very long time," said Nancy King, a former prosecutor who teaches at Vanderbilt University Law School. "Allowing the judge to have some way to look at what the offender has done and sentence them based on what judge thinks is best is a good thing."

As long as the sentence is within the statutory maximum, King said, "they are not being sentenced for acquitted conduct any more than they are being sentenced for prior convictions," which judges routinely consider when sentencing criminals.

Advocates argue that recent Supreme Court cases call into question whether sentencing for acquitted conduct is permissible. Since its decision in Watts, the Court has held that the federal sentencing guidelines are advisory, rather than mandatory, and that, in most circumstances, any fact used to enhance a sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt.

"It's embarrassing that we keep teaching high school students that one of the things that makes this country great is jury trials, when you can be sentenced and it doesn't matter that you've been acquitted" of the conduct on which part of the sentence is based, said Douglas Berman, a sentencing law expert at Moritz College of Law, who has filed a friend of the court brief on White's behalf.

In Roger White's case, his brother, Jeffrey White, promised him a third of the profits from robbing a bank in Maysville. According to court records, White's brother and his girlfriend robbed the bank and then fled in a car rented by White. The judge found that White led police on a high speed chase as shots were fired from his car at police.

White eventually crashed the car. Jeffrey White shot his girlfriend in the head before committing suicide.

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