Two-Thirds of Supreme Court Justices Okay With Defendant Going To Prison For A Crime He Didn’t Commit


Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to

Related Post Roulette

49 Responses

  1. Marchmaine says:

    Interesting… It appears there’s even a little court history/drama to the dissent suggesting that this is a known issue that has been discussed among the justices. I wonder what the counter-position would be.

    The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. Report

    • Jaybird in reply to Marchmaine says:

      I’m not surprised that the two Justices who have actually bothered to read the Bill of Rights came to the conclusion they did and I’m not particularly surprised that Ginsburg reached the conclusion that she did, being all liberal and whatnot… but I’m pretty much flabbergasted that they couldn’t get one other person to agree that, hey, we need to at least *HEAR* this case.Report

  2. Jaybird says:

    Perhaps the lawyer types can explain this to me because I come from a place where I look at this and see it as pretty cut and dried.

    How is this not cut and dried? What’s the opposing argument?Report

    • Kolohe in reply to Jaybird says:

      IANAL, fwiw, SCOTUSblog has the government’s opinion on this pageReport

    • Gaelen in reply to Jaybird says:

      I’m not a lawyer yet (getting sworn in on Friday), but here’s how I understand the opposing view.

      Basically, the sixth amendment does not allow a judge to impose a sentence longer than the statutory maximum of the crime of conviction based on a fact or facts not found by a jury beyond a reasonable doubt. From my quick skim of the Gov’s brief, these D’s were convicted of charges that carried extremely long terms (40 years in Ball’s case). Once convicted the judge uses a number of factors to come up with a sentencing range with the maximum and minimum years set by statute.

      The judge in this case found by a preponderance of the evidence that the three D’s had engaged in a conspiracy to distribute crack–a fact the jury acquitted on. This fact raised, probably significantly, the sentencing range these D’s faced. But, and this is the key point, it was not raised above the maximum sentence for which the D’s were convicted. Because the sentence was not above the statutory maximum there was no constitutional violation.

      Any actual lawyer (or non-lawyer) is free to correct based on superior legal experience or having actually done more than skim the brief.Report

      • Gaelen in reply to Gaelen says:


      • Vikram Bath in reply to Gaelen says:

        Congratulations and condolences!Report

      • Gabriel Conroy in reply to Gaelen says:

        First, congratulations.

        Second, this kind of bothers me (and you didn’t say whether you agreed or not, so this isn’t necessarily a criticism of a position you’ve taken):

        The judge in this case found by a preponderance of the evidence that the three D’s had engaged in a conspiracy to distribute crack–a fact the jury acquitted on. This fact raised, probably significantly, the sentencing range these D’s faced. But, and this is the key point, it was not raised above the maximum sentence for which the D’s were convicted. Because the sentence was not above the statutory maximum there was no constitutional violation.

        If the judge actually admits that he bases his sentencing on the fact he “found” the defendants had committed a crime they were accused of, and uses that “finding” as part of his sentencing, that seems to me a clear sign he’s punishing them for something they were acquitted of. And to me that seems wrong. I understand that the judge had the discretion to sentence as long as the sentence fell below the maximum, but I’d suggest that certain reasons for exercising that discretion ought to be prohibited, and among those is a “finding” of fact of which the defendants had been cleared. I suppose that in practice, all this rule would do is encourage them to cite some other reason, or no reason, for the sentence they impose.

        I do have another question, though. Why do you (or why does the judge) refer to a “preponderance of evidence” standard when it comes to sentencing? Is that common? Guilt or innocence determined by a “reasonable doubt” standard, but sentencing by a “preponderance” standard?Report

      • Gaelen in reply to Gaelen says:


        The use of preponderance of the evidence is well established in sentencing. And, while I’ll admit that it might seem unfair if not unconstitutional, it does make some sense in the context of how we sentence people convicted of crimes. So, once someone is convicted both sides are going to present evidence on various aggravating and mitigating factors which move the sentence range up or down within the statutory max and min (I should also point out that (IIRC) judges have the discretion to not use the sentencing guidelines). Here were talking about things like is the D repentant, was he under duress, is this a first offense, etc. And, on the other side, was a gun used, did the D act cruelly or maliciously, past crimes, etc. What I’m trying to get at, is that it would be difficult to deal with these factors under a reasonable doubt standard, or to use reasonable doubt only for aggravating factors.

        Generally, I don’t have a problem with this. Preponderance just means more probable than not, while reasonable doubt is a very high bar to clear. This would seem to present a pretty good example of how these standards play out. The DOJ proved that it was more probable than not that a conspiracy to distribute crack existed–but could not prove it beyond a reasonable doubt.

        Finally, I also side with the dissent here, in that I think a judge found fact can be used to impose a sentence that is unreasonable in light of the crime and therefore unconstitutional. Also, IIRC, Scalia (and maybe Thomas) were not a fan of a review of sentences for reasonableness. So, this might be Scalia and Thomas trying to undercut that particular holding of Booker (?).Report

      • Jaybird in reply to Gaelen says:

        It strikes me as monstrous that people be sentenced for not the crimes they were convicted of but the crimes they were convicted of *AND* acquitted of.

        We’re not even talking about a hung jury here. We’re not talking about procedural irregularities. We’re talking about a crime that the guys were found not guilty by a jury and that crime was used to hit the criminals anyway.

        How is this not a violation of the various emanations from penumbras that come from a “trial by jury”?

        All that to say: I don’t understand the counter-argument. It’s not even that the judge just hit them with the max that the crime allowed (as bad as that would be). He hit them with something under the max and said that he did this because, whatever the jury thought, he knew those fellers were guilty.

        Which strikes me as impeachable on its face, without even getting into the underlying constitutional issues which, still, strike me as cut and dried.Report

      • Kolohe in reply to Gaelen says:

        Jb, if I’m understanding what going on correctly (big honking if), the crime they were convicted of, ‘distribution of crack cocaine’ has statutorily allowed sentencing enhancements which, based on the body of case law, can entirely be determined by a judge on a preponderance of evidence standard (one of which is having a pattern of activity resembling classic gang activity). Also, like the pirate code, all of the sentencing language in the statutes are ‘guidelines’ versus actual (mandatory) rules. So a judge is allowed to proverbial throw a book at someone as long as the judge doesn’t go beyond a statutory maximum, which the government claims and the appeals court found that the trial judge did not.

        There are two oolies to this case which I thought of, but I’m not sure how much bearing they have. The first is that this crime was committed in Washington, DC, which makes it literally a federal case from the get go. I wonder if a case that started in a state court would have found cert as it would have been a more broadly applicable case.

        The second is that, ironically, the only political capital this administration has spent on criminal justice reform is getting rid of the disparities in crack cocaine sentencing. I’m not sure if that statutory language which is figuratively hanging these guys out to dry (who, by the way, I don’t think anyone thinks are ‘good’ people) is a peculiarity of crack cocaine laws, but it wouldn’t surprise me.Report

      • Gaelen in reply to Gaelen says:


        So, a few points. Being found not guilty only means that the jury had reasonable doubts about guilt, not that they didn’t do it, and not that there was not a sizable amount of evidence that they did do it. Said another way, the jury did not say that they did not engage in a conspiracy to distribute crack, it only said they had a reasonable doubt about such conspiracy.

        Next, they weren’t sentenced for the crime of conspiracy to distribute crack, they were sentenced for the crime of distributing crack, and the conspiracy was used as a factor in their sentencing. If one of the D’s could have shown that he only sold crack because of some duress he was under, or that he left the gang and became a model citizen between his arrest and conviction, then the judge could have used those factors to lower the sentence he would have received.

        The problem here is our drug laws–not (really) the burden of proof for sentencing factors.Report

      • Jaybird in reply to Gaelen says:

        The reasoning is really, really important here, though. If the sentence guidelines say between X and Y years and the judge says “you were found guilty of the crime, the sentencing guidelines say between X and Y, you guys are getting Y, may God have mercy on your souls”, that’d be bullshit but there isn’t really an constitutional argument against that (well, without getting into whether sentencing guidelines are violations of the concept of separation of powers but that’s another post).

        As it is, the judge said “you were found guilty of a crime that I’d normally give somewhere around X, but since you also did this thing you were acquitted of, I’m instead going to give you Y”, the judge has officially given a reason that, it strikes me, is downright unconstitutional.

        But… you’re right. The crack cocaine laws passed in the 1980’s were pretty crazy. This could be an artifact of those laws that wouldn’t necessarily bleed over into other parts of the law… this still strikes me as something that could easily start bleeding over into other parts of the law tomorrow, though.Report

      • Kolohe in reply to Gaelen says:

        The thing to keep in mind, if I’m understanding the system correctly, is that the cert battle *isn’t* over whether or not anyone’s 6th amendment rights were violated or not. The battle is over whether or not existing case law and Supreme and other court law is clear or not. The government’s case, and the appeals court ruling, has little to do with the rights of Jones et al; it’s about whether or not existing precedent is clear and that the trial judge’s decision comports with it. Scalia (and the other two) said ‘no it isn’t’ while the government listed something like a dozen cases (footnote 3) ‘yes it is’. (and it’s likely imo, that Scalia took time to make a dissent because the government called out Scalia in one of its cites (Rita v US)).Report

  3. Mark J says:

    Ya’ll don’t get all excited about Scalia and his understanding of what justice means. He doesn’t give a crap about justice. He cares about process, which is why I suspect he wanted to take this case. There was a famous case of a death row inmate in Texas who was innocent (coerced confession, inadequate council, DA hiding evidence, mentally retarded, DNA evidence showed he didn’t commit the crime, confession from the actual killer) and Scalia voted to execute him because he felt the judicial process had been followed. So he’s no protector of justice for the wrongfully convicted.

    Not sure why the others didn’t want to take the case, but I suspect the more liberal justices knew that they would lose in the full court and didn’t want to set a precedent.Report

    • Gabriel Conroy in reply to Mark J says:


      Not sure why the others didn’t want to take the case, but I suspect the more liberal justices knew that they would lose in the full court and didn’t want to set a precedent.

      I had thought of that possibility, and in the end you might very well be right. But how likely is it? It seems, at least from the dissent, that Scalia would have sided with the “liberal” position. (Maybe Thomas, too? Or perhaps he would’ve granted cert. because he wanted the decision to go the other way?) Would Ginsburg + Scalia have that much of a difficult time finding three others? I’m not enough of a court watcher to know for sure. So again, maybe you’re right.Report

      • Mark J in reply to Gabriel Conroy says:

        I have no idea why they denied cert in this case. I am a long-time court watcher and I know that the reasons are often unfathomable to this non-lawyer’s way of thinking. I was surprised they denied cert in the recent spate of marriage equality cases.

        I do know that the reasons for denying cert often have to do with arcane legal hocus-pocus. I don’t know all the legal issues here. It seems simple, but it may not be. I am a big fan of Ginsburg (who has really come into her own lately as a judicial force) and if she was for hearing the case, that certainly gives me pause.

        But I do know that Scalia (and his other half Thomas) are no friends of convicted criminals so I have to be suspect of his reasons for hearing this. His dissent can be read both ways but certainly he seems in favor of settling the issue. As he states, it has been an issue for many years. Perhaps the other justices didn’t feel this was the proper case to resolve the legal issues? For who knows what reasons.

        I just know enough to be wary of Scalia, and any notion that he is FOR justice instead of his own Catholic theocratic agenda is just a sad, sad laugh.Report

    • j r in reply to Mark J says:

      In other words, the guys you like had perfectly understandable motives for doing something wrong and the guy you don’t like is still terrible because he is doing the right thing for the wrong reasons?

      How do you keep this stuff straight without a program?Report

    • Jaybird in reply to Mark J says:

      So Ginsburg is colluding with Scalia and Thomas because… the conspiracy just goes that freaking deep?Report

      • Jim Heffman in reply to Jaybird says:

        Eleven-dimensional chess is so Twentieth Century, man. We’ve moved on to chess played in a number of dimensions so large that our finite universe cannot express the number.Report

    • Gaelen in reply to Mark J says:

      From a very limited amount of research, it seems like Scalia is not a fan of the substantially unreasonable standard for reviewing sentencing decisions, and would likely vote to get rid of it. I think the last line of his dissent gives it away.Report

    • James Hanley in reply to Mark J says:

      Scalia voted to execute him

      Of course he didn’t, but saying it that way makes him sound so much more evil.Report

      • Mark J in reply to James Hanley says:

        Okay fine. Scalia voted to uphold the conviction, in spite of the overwhelming evidence that he was wrongfully convicted, which led to his execution.

        Not sure how that is substantially different that saying Scalia voted to execute him, but if it makes you happy.

        And if you don’t realize that Scalia is in fact, evil, then you need to pay more attention.Report

      • j r in reply to James Hanley says:

        I can concede that Scalia is evil, so long as we all agree that the definition of evil is, in this case, some guy who disagrees with you.Report

      • James Hanley in reply to James Hanley says:

        Mark J,

        I have any number of criticisms of Scalia. But because I am both paying attention and am not a penny ante partisan, I find claims that he’s evil to be quite boring.Report

      • Mark J in reply to James Hanley says:

        James, so glad to hear you aren’t a penny ante partisan. Me neither. How nice it is to find new friends with whom you have something in common! Maybe in time we’ll be besties?Report

      • James Hanley in reply to James Hanley says:

        And if you don’t realize that Scalia is in fact, evil, then you need to pay more attention.

        You’re a penny ante partisan.Report

      • Mark J in reply to James Hanley says:

        James, James, James. What is with all the grammatically incorrect name calling? I would say that is beneath you, but I don’t know you, as you don’t know me. So calling me a penny-ante (you need the hyphen) partisan seems a stretch.

        Tsk, tsk. Name calling, James! Is that what this conversation has become?

        But let us see shall we? I said that Scalia was evil. Other words (that would be synonyms) for evil: wrong, dishonorable, and corrupt. I think those words pretty much sum up Scalia. It has nothing to do with my politics (of which you have no idea, James), and everything to do with Scalia’s need to enforce his particular brand theocratic politics on the US. And again, if you don’t understand that Scalia is first and foremost a very conservative Catholic (member of the crazy Opus Dei cult) before all else, then you aren’t paying attention.Report

      • James Hanley in reply to James Hanley says:


        You’re already boring me.Report

      • Mark J in reply to James Hanley says:

        So sorry, James. I didn’t realize it was my job to entertain you. If you need entertainment to assuage your boredom, might I suggest Bravo TV. They have all those Real Housewife reality shows that many people find amusing. I don’t personally, but it might be to your taste.

        Apparently you get bored easily when you don’t have anything to add to a conversation.I get that. I find that reading is always a good way to enrich my mind and learn something new. I’m happy to suggest a few books if you are looking to expand your knowledge.

        I am a particular fan of Joan Didion and MFK Fisher. I’d highly recommend anything by either author.Report

      • James Hanley in reply to James Hanley says:

        As far as trolling goes, I’d give that a C-.Report

      • Mark J in reply to James Hanley says:

        Is everyone that disagrees with you a troll, or am I special?

        Or is it just that I find your condescending tone abrasive and uncalled for?

        If you want to have a substantive conversation, fine. I can do that. If you just want to trade barbs, fine, I can do that too.

        Or are you boring me already? You keep telling me that I am boring you but you keep writing nasty comments to me. So not so bored are you, James? Don’t you have anything of weight to add to the conversation?Report

      • James Hanley in reply to James Hanley says:

        You weren’t being substantive. You were being cheap.

        Again, I have any number if disagreements with Scalia. I’m not defending him. But if you think “Scalia is evil” is a substantive statement, rather than cheap rhetoric, then you’ve never learned what substantive discussion is.Report

    • Burt Likko in reply to Mark J says:

      But the fact of the matter is that process is important. And when process is followed, we ought to be able to trust the result. Otherwise, why have rules at all?

      IIRC, there is a procedure called habeas corpus, in which the plaintiff’s burden of proof is preponderance, actual innocence is a typical and powerful path towards meeting that burden, and Justice Scalia suggested that the defendant in that case to bring his evidence of actual innocence in that proceeding. Maybe I’m thinking of a different case, because in the case I’m thinking of I don’t recall evidence that the defendant had a mental impairment.Report

      • Mark J in reply to Burt Likko says:

        Burt, I agree that process is important, but process isn’t everything. Sometimes the truth matters more than process. Look at all the wrongfully convicted people on death row who have been exonerated. Process was followed but the result wan’t good or trustworthy. If I were black, I’d hardly have much faith in judicial process. I’m a gay man, and I don’t have much faith in judicial process.

        I’ll find the case I am referring to this evening. The man was black and had an IQ around 60, as did his co-defendant. The issue was that there was new information, DNA evidence not available at the original trial and subsequent appeals, but proved innocence (along with a confession from the actual killer also not available earlier). Scalia voted to ignore the new evidence and kill an innocent man because of … process. The man had made his appeals and lost and the process was followed and therefore the man had to be killed, even though he was innocent. Fuck truth, justice, mom, apple pie and the American way. Unless by American way you mean killing innocent black men.Report

    • Gaelen in reply to Mark J says:

      Just a little more on why I think Scalia and Thomas (and perhaps others on the court) would have voted to uphold these convictions, and why it likely smart judicial politics for this not to get granted cert.

      A little background might be needed to understand this. To start, the Court has held that the 6th amed. requires that criminals only be sentenced based on facts found by a jury BRD. The facts found correspond to a statutory sentence. If facts are found by a judge and lead to a sentence which violates the statutory scheme, then the persons 6th Amendment rights have been violated. There are two ways to violate the federal sentencing guidelines, one is to impose a sentence above the max, the other is to impose a sentence that is substantially unreasonable. The first of these is well established. The second–the issue in this case–is much more controversial.

      Scalia dissented from the adoption of the substantially unreasonable test in Booker. And, while he voted to uphold it in Gill on stare decisis grounds, he is not a fan and would likely use this opportunity to hold that the Federal sentencing guidelines have no reasonableness standard, and, consequently, this sentence is constitutional.Report

      • Road Scholar in reply to Gaelen says:

        Dude. So I just finished reading most all of the motions and amicus briefs. Yech. My eyes hurt. As near as I can figure the basic issue seems to turn on whether sentencing guidelines constitute law or mere suggestions. And that in turn would, I suppose, depend on how they’re written with some granting judges more or less flexibility than others.

        I agree that Scalia wants to settle an issue he feels is currently less than adequately resolved but I disagree that he would likely side with the government here. He’s an originalist and this case has interesting sixth amendment implications.

        And I think the majority is just running with stare decisis here.Report

      • Gaelen in reply to Gaelen says:

        Reading almost briefs. You’re a better man than me.

        My take is that Scalia does feel that the issue of whether an unreasonably long sentence imposed based on a judge found fact is not adequately resolved. But that he doesn’t think judges should be reviewing decisions under the sentencing guidelines for reasonableness.

        So, if there was a majority that overturned, he would likely vote with them on stare decisis while writing a concurrence stating his opposition to the reasonableness standard. If he could get a majority to overturn that standard he would. And overturning that standard gets rid of this issue.

        I guess what I’m saying is that I don’t think he would side with the government, but that he might not side with the petitioners either.Report