Heads I Win, Tails You Lose: How Judges Make You Do the Time Even If You Didn't Do the Crime

In the layman's view of the criminal-justice system, defendants go to trial, are convicted or acquitted of certain charges, and if convicted, are sentenced for the offenses. But try to explain the reality of being sentenced for acquitted conduct, and you're likely to be met with stares of astonishment. "You mean you can go to trial, get acquitted and still go to the slammer for stuff the jury says wasn't proven?"

Indeed, my friends, welcome to the wacky world of criminal sentencing.

Not only have many defendants been sentenced for stuff the jury said they didn't do (or at least wasn't proven), but yesterday the Supreme Court refused to do anything about it. The cert denial came in the case of Mark Hurn of my hometown, Madison, Wis. Hurn ate 15 years extra years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. It's true. Though he was convicted of having powder cocaine in his house, (for which he was looking at two or three years in prison), he was sentenced to almost 18 years. Why? Because even though the jury acquitted him of the crack charge, the judge kind of figured he'd done it and therefore found, by a preponderance of the evidence that he'd done it, and sent him to prison as if the jury had actually said "Guilty" rather than "Not Guilty."

Strange? Yes. But sadly, also true.

And while the high court's refusal to hear Hurn's appeal (notwithstanding reverse his sentence) yesterday was cowardly enough, with the fourth circuit's decision this afternoon in US v. Ibanga, we have finally landed in Wonderland. In the case (and no it's not a joke though I wish it were), the fourth circuit basically says that not only CAN you sentence on acquitted conduct, categorically refusing to consider it is actually error.

What does that mean? It means that if you go to trial and blow, on even a single count, you run the risk of getting slammed for the entire indictment. Not only do ties go to the government, if they even score a run, they win. Anything other than a shut out is a loss for the defense. And that, in turn, makes it virtually impossible to win, but worse, it means that going to trial with a "I did this but not that" defense gets you only a pyrrhic victory. No longer can you reasonably contest a part of the government's case against you at a trial. Well, let me amend that, you can contest it, but it's unlikely to make a difference in how long you go to prison for even if you win.

Your only option? Total victory or plea.