This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, 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. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.

You may be wondering, why did the other justices — particularly the left-leaning justices — decline to hear this case? One explanation is that, on criminal justice cases, the court doesn’t generally separate into the traditional right-left coalitions you might expect. (Believe it or not, the court’s biggest defender of the Fourth Amendment in recent years has been Scalia.)

But Justices Elena Kagan and Sonia Sotomayor, in particular, have shown interest in this issue, so it’s surprising that they would decline to hear this case. The National Law Journal article offers another possible explanation:

The University of Illinois’ [law professor Margareth] Etienne speculated that some justices may have felt the facts of the Jones case were “too good” to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. “It is going to take a while” for the court to revisit the issue, Etienne added. “Until it does, the old adage that one is ‘innocent until proven guilty’ will continue to have little meaning.”

That the Supreme Court might consider a possible constitutional violation “too good” to overturn — meaning too egregious — may strike some people as surprising. But it does underscore that the court tends to be far more interested in process and procedure than in ensuring justice — particularly justice on a case-by-case basis. Most court watchers agree that enough justices are interested in this issue to eventually strike down these sentences. But it could well be that because the violation of the Sixth Amendment rights of Jones, Thurston, and Ball was too clear-cut, the three will have to remain in prison and hope that a more ambiguous case comes along. Of course, if the new case is too ambiguous, there may not be five votes to overturn the conviction, leaving the men in prison to wait yet again.

For more on Jones, see this post by Douglas Berman, and the series of links at the bottom.