Think the government must convict you of a crime before it can punish you for it? Think again.

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Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted.

In fact, the judge can even consider crimes for which the defendant has never been charged.

Last week, the U.S. Supreme Court declined to hear Jones v. U.S., a case that would have addressed the issue. The National Law Journal summarizes the facts:

[A] District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.

Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he “saw clear evidence of a drug conspiracy,” and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court.

There have been other cases like this, including at least two in which federal judges sentenced defendants for murders for which they were never even charged, never mind convicted. So not only can a judge sentence a defendant for crimes for which a jury acquitted, he can sentence a defendant for crimes for which prosecutors didn’t have enough evidence to charge.

Interestingly, an unlikely lineup of Supreme Court justices filed a rare dissent to the Court’s refusal to hear Jones. Justice Antonin Scalia wrote the dissent, and was joined by Justice Clarence Thomas and Justice Ruth Bader Ginsburg. From that dissent:

We have held that a substantively unreasonable penalty is illegal and must be set aside. … It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.

For years, however, we have refrained from saying so. In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case. We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. … Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range. …

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.