When the government accuses someone of a criminal offense, it typically proceeds to exert enormous pressure on the accused to surrender the right to a jury trial. Fewer than 10 percent of the criminal cases in America go to trial. Plea bargaining dominates the system.

Sometimes a person will insist on a trial. This is risky because if the government gets a conviction, it will mete out extra punishment because it was forced to go through the “trouble” of a trial. But if the jury sides with the accused, the state loses, right? Wrong. The state can still unleash punishment after an acquital.

Hard to believe, I know. Here’s a recent ruling (United States v. Ibanga) in which the Court is at pains to explain the law.

After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years. …

What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham.

From the public’s perspective, most people would be shocked to find out that even United States citizens can be (and routinely are) punished for crimes of which they were acquitted.

[…]

The Sentencing Guidelines have accomplished much good in the course of standardizing the sentencing process. Similarly, the Fourth Circuit’s post-Booker presumption approach is a politically savvy parry to the thrust of those who call for more stringent measures, such as the expansion of mandatory minimums. However, it is a charade to say that the Sixth Amendment violations inherent in the Guidelines are cured simply by intoning the word “advisory.” Saying something is so does not make it so.

One of Charles Dickens’ characters, Mr. Bumble, famously observed, “If the law supposes that, … the law is an ass– an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). He was referring, of course, to a legal fiction that had no basis in reality. Many of our fellow citizens believe that Mr. Bumble was right — that the legal process is rigged through sleights of hand that defy common sense. It would only confirm the public’s darkest suspicions to sentence a man to an extra ten years in prison for a crime that a jury found he did not commit. (Italics added.)

This case stands out because the ruling is bitterly critical of this aspect of sentencing law. Most court rulings affirm this stuff all the time, without comment.

I should point out that the state is powerless to do anything in the typical TV drama situation where there is a single murder charge that the jury is considering against someone. If there’s a single charge and the jury says “not guilty,” the prosecutor cannot do anything about that result. But that’s TV. Nowadays, when a case goes to trial, there are multiple charges. And if the jury comes back with a single “guilty” verdict, the government might still drop a ton of bricks on the defendant — even if the jury said “not guilty” on a dozen other charges.

Does the existence of such a power influence a person’s decision with respect to whether he ought to “waive” his right to a jury trial in first place — and accept a plea bargain? What do you think?

The constitutional right to a jury trial is on life-support and that’s where the government wants it. Go here for Cato articles related to sentencing.