If a jury convicts you of one crime in federal court, but finds you innocent of a more serious one, can the judge sentence you for the more serious one anyway? Yes. And last week the Supreme Court, with a chance to put a stop to it, chose not to.

In 2005, Joseph Jones was arrested and charged with conspiracy to sell crack cocaine as an alleged ringleader of the Congress Park Crew, a drug-dealing gang in Washington, D.C. Two years later, after an eight-month trial and weeks of deliberation, a federal jury found Jones and his co-defendants guilty only of selling a few grams of crack each and acquitted them of the more serious charges, which included conspiracy and murder. Under the federal sentencing guidelines, Jones was facing between 33 and 41 months in prison. But Judge Richard Roberts said he believed Jones had in fact sold far more crack as part of a violent conspiracy. He more than quadrupled Jones’ sentence to 180 months, or 15 years.

Jones and the other men, whose sentences the judge also increased on conspiracy grounds, appealed, arguing that the Sixth Amendment’s guarantee of trial by jury forbids a judge from imposing a sentence based on conduct that a jury explicitly found didn’t take place. But because the sentence, though higher than what the federal guidelines recommended, was still lower than the absolute maximum allowable by law for the crimes of which the jury did find Jones guilty, the Court of Appeals for the District of Columbia upheld it. Last Tuesday, the Supreme Court—despite a vigorous dissent by Justice Antonin Scalia, joined by Justices Ruth Bader Ginsburg and Clarence Thomas—declined to hear the case. Since every other federal circuit court had already reached the same conclusion as the D.C. Circuit, that means trial judges in every federal court in the country are free to emulate Judge Roberts.

It seems intuitively, even obviously, unfair for a judge to sentence a defendant for charges that the defendant beat at trial. But as long as the sentence doesn’t go beyond the maximum set by statute, the practice has always been legal. If it seems like the problem is that the maximum sentence allowed by law is too high—if a leads to unfair sentencing, why not just lower it?—that’s true. But that’s not the whole story.

Judges have traditionally had wide discretion to impose criminal sentences following a conviction or guilty plea. The “elements” of a crime, such as the intent to commit it and the conduct that is the criminal act, have always had to be proved to a jury beyond a reasonable doubt (or admitted in a guilty plea); “sentencing factors,” such as the viciousness of the crime or the vulnerability of the victim, have not. But as factors that lengthen sentences, such as drug quantities or gun use, were increasingly added to criminal statutes in the 1970s and 80s, a question naturally emerged: What’s to stop a legislature from calling something a “sentencing factor” rather than an element of a crime to get around the reasonable doubt standard?

The Supreme Court seemed to answer that question in 2000, in Apprendi v. New Jersey. After allegedly firing a gun at a black family’s house, Charles Apprendi, a white man, pleaded guilty to weapons possession charges that carried a maximum sentence of 10 years. The judge, however, under a state hate-crime statute, “enhanced” the sentence to 12 years because, he found, Apprendi’s conduct had been racially motivated. The Supreme Court, in a 5-4 decision, overruled. Justice John Paul Stevens’ majority opinion, joined by Ginsburg, Scalia, and Thomas, plus Justice David Souter, laid down a dramatic new rule: The Sixth Amendment requires any fact that increases the statutory maximum punishment—regardless of whether it’s called an element or a sentencing factor—to be found beyond a reasonable doubt by a jury, not a judge. Pretty clear, right? Not quite.

Booker Ushers in Confusion

But a few years later, in 2005, the Court muddied the waters in U.S. v. Booker, one of the strangest Supreme Court decisions of all time—two justices each filed both a majority opinion and a dissent.

Booker was a case about the federal sentencing guidelines, which were established in the 1980s as a way to reduce sentencing disparities among judges. They were what they sound like—guidelines that told judges how to sentence convicts who had been found guilty by juries. At the same time, they allowed a Reagan-era Congress to respond to rising crime rates by dramatically increasing potential punishments—especially for drug crimes—through the addition of “aggravating factors.” Under the guidelines, sentencing became a four-step process: first, determine the “base offense” level for the crime—bank robbery, kidnapping, whatever; second, increase the offense level by finding “specific offense characteristics,” such as how much money was stolen from the bank; third, factor in “adjustments,” such as whether the defendant was the leader or merely a participant; and fourth, increase the sentence range according to how many prior convictions the defendant has. At that point, the judge would be left with a sentencing range that, with very few exceptions, she couldn’t deviate from.

Freddie Booker was convicted of possession with intent to distribute more than 50 grams of crack. Based on his criminal record and the amount of crack the jury concluded he possessed (92.5 grams, or about 3.3 ounces), the then-binding guidelines mandated a sentence range of about 17 to 22 years. But because during the sentencing hearing the judge found that Booker had possessed an additional 566 grams of crack and obstructed justice—specific offense characteristics—the guidelines required him to increase the sentence to 30 years to life. The judge chose 30 years.

The same majority from Apprendi, again in an opinion by Stevens, overruled Booker’s sentence. The Court held that, because under the mandatory guidelines 22 years was “the maximum authorized by the facts established by a plea of guilty or a jury verdict,” any further fact justifying a higher sentence “must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” In other words, the upper bound set by the guidelines was equivalent to the 10-year maximum in Apprendi: The judge couldn’t impose a higher sentence based on facts that the jury hadn’t found.

There the case could have ended: Only facts proved to the jury can be used by a judge to exceed the base sentence under the federal guidelines. But a strange thing happened. The four dissenters—Chief Justice William Rehnquist and Justices Stephen Breyer, Anthony Kennedy, and Sandra Day O’Connor—had a different idea about how to fix the constitutional problem, and they managed to convince Ginsburg to join them. As a result, while Stevens had a majority for his opinion on why Booker’s sentence was unconstitutional, Breyer—who had played a key role in developing the guidelines as a member of the U.S. Sentencing Commission—got to write a separate majority opinion explaining what the remedy for Booker would be.

In other words, Breyer, who didn’t believe the Constitution had been violated,got to decide how to fix the violation—much as if Mitt Romney had been allowed to appoint Barack Obama’s cabinet. The solution, Breyer wrote, was to revise the Federal Sentencing Act to make the guidelines advisory, rather than mandatory. That way, one couldn’t technically complain about bumping a sentence into a higher guideline range based on a judge-found fact, because the judge was merely advised, not required,to stick to the lower range in the absence of that fact. This was better than forcing all sentencing increases to go before a jury, he argued.

It is hard to overstate just how bizarre this solution was. As Stevens pointed out in his anguished dissent, the part of the Sentencing Reform Act making the guidelines mandatory wasn’t unconstitutional, and no party involved in the case had even suggested that it was. Perversely, a case that was supposedly about protecting a defendant’s right to have a jury decide his guilt was decided in a way that weakened that very right: After the Supreme Court ruling, the federal trial judge who originally sentenced Booker resentenced him to the same 30 years as before.

In the Wake of Booker

Uncertainty has reigned since Booker was decided. On the one hand, while the whole point of the guidelines was to put an end to dramatically different sentences for similar crimes by eliminating the discretion of judges, making the guidelines advisory seemed to restore their discretion—they could order vastly different sentences once again, if they wanted. On the other hand, the Breyer majority also held that appeals courts would be able to review sentences to make sure they are “reasonable,” and in a series of post-Booker cases the Supreme Court has suggested that judges risk being overturned if they stray too far from the guidelines. So it’s still unclear how much leeway judges have to impose any sentence up to the maximum if the guidelines suggest something less.

In the meantime, what about Joseph Jones, whose sentence was increased based on the very actions that a jury acquitted him of? In his dissent last week, Scalia argued that Jones should have gotten a chance to argue that his 15-year sentence would have been ruled unreasonable without the additional finding that he’d been part of a conspiracy. If that’s true, then that finding was necessary to make the sentence legal—which means it had to be determined by a jury. In other words, according to Scalia, Jones’s extreme sentence was probably unconstitutional because it depended on a fact determined by a judge, not a jury.

As Scalia’s dissent made clear, Jones’ case was an especially stark example of the federal sentencing system’s constitutional problems “because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.” By applying Scalia’s approach, the Court could have undone at least some of Booker’s damage. But for whatever reason, Stevens’s replacement, Justice Elena Kagan, wouldn’t give Scalia, Ginsburg, and Thomas the fourth vote they needed to make the Court take the case. Joseph Jones, in almostthe exact same position that Freddie Booker was in a decade ago, is out of options. He will serve an extra 12 years in prison for crimes that a jury said he didn’t commit.

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