PMAC has a good point.
How a judge can sentence (and hence psuedo convict) somebody based of what he/she THINKS theyve done, not what theyve been convicted of goes against the very concept of a trial by your peers.
It specifically negates the trial. And in doing so the system itself (innocent until PROVEN guilty).
It's a very dangerous trend.
I remember reading about one NY southern district case last year. The guy was aquitted of all charges... Judge slammed him with 20 years. They call it 'aquitted conduct'. I thought the same way as you guys when I first found out about that. Which was essentially.... How?
So I read up on it. It's such a flagrantly unconstitutional practice, that it's being fought in Supreme Court.
Here is an informative discussion and explanation of the acquitted conduct sentencing enhancement.
http://sentencing.typepad.com/sentencing...nhancement.html I think for the most part its constitutional and will stay that way. There is a long line of cases that affirm that the practice of judges "establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime". There was no appeal to the SC in that case mentioned above.
The most recent case is US v. Jones (in front of the DC panel), in which a guy was indicted for a massive drug conspiracy and murders. He was acquitted of all counts except a single crack distribution count. The District Court judge then found by a preponderance of the evidence "clear evidence of Ball's leadership in a drug Conspiracy" and gave him a 225 month prison term far in excess of the guidelines.
Here is the argument it isnt constitutional:
http://sentencing.typepad.com/sentencing...ing-claims.htmlIt is:
http://www.washingtonpost.com/news/volok...ng-a-drug-ring/My feeling is that the practice is probably constitutional under current binding precedent, but morally and legally very dubious and wrong. Scalia wrote the clearest argument against in his Rita concurrence.
