Trial by jury means that, whether you are really guilty or not, if the jury acquits you, then you are acquitted. Once the jury has spoken, no other authority can punish you for that accusation.
But it doesn’t mean that. Not anymore.
Yesterday I ran across the Simple Justice blog’s post, “Sotomayor and Kagan, An Unforgivable Denial.” I suspect the title reflects the political perspective of the writers who expected better things of the liberal justices.
It is interesting that the dissenters opposing the Supreme Court’s decision were Scalia, Thomas, and Ginsberg!
This decision wasn’t an official hearing of a case; it was a refusal to hear a case. If just one more justice had voted with Scalia, Thomas, and Ginsberg, then the case would have been reviewed by the Supreme Court. Maybe they would still have nullified trial by jury. Hard to say. But that is what they did!
Here is the basic story.
- Defendants are accused of a major criminal conspiracy involving narcotics, along with violent crimes, and a jury finds them not guilty.
- The jury do find the defendants guilty of a very minor drug offense.
- The judge sentences the defendants on the basis of their participation in a major criminal conspiracy involving narcotics.
Yes, that’s right: the judge, when sentencing the men for the one minor crime, threw out the jury’s ruling of “not guilty” and penalized them on the basis of the prosecutor’s allegations.
The question of sentencing on related, but unconvicted, conduct is one of the most controversial and disturbing aspects of federal sentencing. What is the point of the constitutional guarantee of a trial if a defendant can be sentenced for conduct for which he was never convicted by a jury? In Rita v. United States, the Supreme Court held that a sentence above the statutory max for an offense requires a verdict of guilt by a jury, but let stand that a sentence below the statutory max could be based on related conduct found by the judge, based on a preponderance of the evidence standard.
The question of acquitted conduct was left hanging.
So now the question is no longer hanging. People were punished for behavior of which a jury specifically found them to not be guilty, and the Supreme Court is going to let the conviction stand.
You can read Scalia’s dissent at the Sentencing Law and Policy blog. I can’t believe that either Alito or Roberts would not join Scalia and Thomas. Right now, the judge can not only include crimes of which you have never been convicted in sentencing you, but he can include crimes that a jury has denied you are guilty of.
That is a mockery of justice.
The Supreme Court has just practiced jury nullification.