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.

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.

At sentencing, the judge said that the crime was "one of the most egregious bank robberies that I have seen in my tenure here as a judge." Anything less than the 22-year sentence "would not promote respect for the law, [and would] minimize the trauma and pain and suffering by the victims," the judge said, according to the government's brief.

Though they don't dispute that White is guilty of the crime of which he was convicted, White's lawyers say the courts still should not be able to give him a greater sentence based on crimes the jury never convicted him of committing.

"The average American citizen would be shocked to find out you can still have a sentence based on conduct for which you were acquitted," said White's appellate attorney, Kevin Schad.

"The common citizen thinks that the judicial system works in a certain way. The government charges you with a crime and you get your day in front of a jury," he said. "If a jury decides you're not guilty then you're not going to be sentenced based on crimes for which you are not guilty. But that's not really what's occurring."