Uh ... say what, now?

[unixronin]

[...] 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."

WTF?

Excuse me if I've been asleep a long time, but ... the last time I knew, the standard of proof in a criminal case was not "by a preponderance of the evidence", it was "beyond a reasonable doubt".  And then the high court refused to hear an appeal?

Somebody just got railroaded here, and if this stands up, it's a very, very dangerous precedent.  What's the next step?  Presumption of guilt instead of presumption of innocence?  Eliminating the jury altogether and going to an inquisitorial court system like, say, Italy's?  Perhaps we could allow secret evidence in all trials, not just ones where someone within a half-mile radius said the word "terrorist", and deny all defendants the right to confront their accusers, hear and contest evidence presented against them, or know the charges against them.

Comments

[cipherpunk.livejournal.com]

With benefit of a little perspective and a little research, I now think this case has been overblown.

It appears to be the case that the sentence imposed was within the statutory limits. If you're found guilty of an offense that's punishable by two to five years, then any sentence between two to five years is Constitutional.

In this case, it seems to be true that the sentence Hurn received was within the statutory limits of the crime for which he was convicted. The furor and uproar seems to be about a judge deviating from sentencing guidelines -- which judges are encouraged to do when they feel it is appropriate, and happens in about 10% of all cases -- and saying "I think you did those things for which the jury acquitted you," as he imposed the sentence.

The judge had the right to impose that sentence under federal law. It was within the range of acceptable punishments. The judge used his discretion, provided to him by law, to throw out the sentencing guidelines and impose a different sentence which was still within statutory limits.

I think the argument to be made here is "drug prohibition is stupid," instead of "this is a Constitutionally questionable practice."

[unixronin.livejournal.com]

Perhaps I'm missing or misremembering something here. Was it not the case that he received a seventeen-year sentence, although the offense he was actually convicted of carries a five-year statutory maximum?

[cipherpunk.livejournal.com]

The sentencing guidelines called for about 30 months, but I believe (and I could be mistaken) that the conviction is punishable by a sentence within that which he was given.

His acquitted conduct was given as a reason to deviate upwards outside of the guidelines, but so far I've found no reporting that says the sentence was above statutory limits.

[unixronin.livejournal.com]

I can't find the article right now, but I recall reading one report at the time which asserted that the statutory limits for the charge of which he was actually convicted, "possession of powder cocaine with intention to distribute", are two to five years for small amounts (where the 50g of powdered cocaine found is considered a small amount). But his sentence was 17.5 years.

That said, I haven't been able to find an actual reference online stating what Wisconsin sentencing limits are for drug offenses, though I was able to find that Wisconsin classifies powder cocaine as a schedule II drug. So I can only go by my recollection of what I read at the time.