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September 20, 2004 - The Wall Street Journal (US)

Reasonable Doubts

How Judges Punish Defendants for Offenses Unproved in Court

Stories of Five Convicts Show That Charges in Dispute Can Multiply Prison Time
The Supreme Court Steps In

By Laurie P. Cohen and Gary Fields, Staff Reporters of the Wall Street Journal

Laurence Braun learned the hard way that being acquitted of a crime doesn't always stop you from being punished for it.

Mr. Braun, former co-owner of a New York company that defrauded the U.S. Postal Service, was convicted by a New York federal jury in 2002 of racketeering and conspiracy. Had he been punished just for those crimes, he probably would have gotten around 2 1/2 years in prison.

But the federal judge who sentenced Mr. Braun also decided he should serve time for many of the 23 counts of which he was acquitted, calling it "relevant conduct." This last-minute add-on -- called an enhancement -- doubled Mr. Braun's prison sentence to five years.

"The government gets two bites at the apple," says Thomas C. Goldstein, a Washington, D.C., litigator. "Prosecutors can put stuff before a jury and if they're unsuccessful because the evidence is tossed or the jury acquits, they can ask the judge to find the very same wrongdoing at sentencing."

(Remainder snipped at the request of The Wall Street Journal)


Facts on the federal sentencing guidelines:

  • Year took effect 1987
  • Percentage of defendants who went to trial before the guidelines took effect 12.6%
  • Percentage after 2.9%
  • Number of sentences under guidelines in fiscal 2002 64,366
  • Percentage of sentences enhanced 44.2*
  • Percentage of current prisoners serving 10+ years 37.8

*Includes only cases with identifiable enhancements

Sources: Bureau of Justice Statistics; U.S. Sentencing Commission; Bureau of Prisons

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