When an acquittal isn’t an acquittal

Times Staff Writer

The Supreme Court declined Monday to reconsider a legal rule that might surprise most Americans: Judges can punish defendants for certain crimes even after a jury has acquitted them of those charges.

In recent years, the justices have described the right to jury trial as one of the bedrock principles of American law. At the same time, they have been unwilling to say that a jury’s not-guilty verdict on some charges means the defendant cannot be punished. Instead, the court has said judges may take into account “acquitted conduct” when they decide on a prison term.

The case of Mark Hurn of Madison, Wis., provides a stark example of the rule.


Hurn was given an additional 15 years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. He was convicted of having powder cocaine in his house, a charge that would warrant between two and three years in prison under federal sentencing guidelines.

But he was sentenced to nearly 18 years in prison, as though he had been convicted on both counts.

“This was an extraordinary increase,” said Elizabeth Perkins, a lawyer in Madison who filed his appeal. “Allowing a sentencing judge to disregard the verdict of the jury is very disappointing.”

In 1997, the high court endorsed the acquitted conduct rule in a California case, but the justices did so in a brief, unsigned opinion. They agreed judges can decide on the sentence for a convicted criminal by “relying on the entire range of conduct” presented by prosecutors, not just the charges that resulted in guilty verdicts. In recent years, the rule has allowed judges to give defendants long prison terms even when a jury rejected key parts of the prosecution’s case.

In Hurn’s case, the U.S. appeals court in Chicago agreed that his prison term was “based almost entirely on acquitted conduct.” Nonetheless, the judges upheld his full sentence last year, citing the Supreme Court’s earlier rulings.

The case began in 2005 when police in Madison searched Hurn’s home and found drugs. They seized 450 grams of crack cocaine, about 50 grams of powder cocaine and $38,000 in cash. Hurn admitted to being a drug dealer, but at his trial he testified the crack belonged to other people who lived in the house.

A jury convicted him of possessing powder cocaine but acquitted him of the crack cocaine charges. Nonetheless, prosecutors said he should be punished for both the crack and powder cocaine offenses, and recommended a sentence of about 20 years in prison.

U.S. District Judge John Shabazz agreed with the prosecutors and said there was good reason to think Hurn was guilty of the crack cocaine charges. He imposed a sentence of nearly 18 years.

Lawyers for Hurn appealed to the Supreme Court last fall, arguing that federal prosecutors should not be permitted to “execute an end run around” the jury. They cited several recent rulings in which the justices described the right to a jury trial as one of the bedrock principles of American law.

But on Monday, the justices turned down the appeal petition in Hurn vs. United States without comment.

“This is very disappointing,” said Douglas Berman, an Ohio State University law professor who is an expert on sentencing. “They have dodged this for now, but eventually the Supreme Court will have to grapple with this again.”