An unusual lineup of three U.S. Supreme Court justices yesterday scolded the majority for refusing to resolve a long-running dispute over judicial discretion in sentencing, reports the National Law Journal. The court declined to hear a case that asked for a ruling that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted. In 2007, several justices said the issue should be taken up if a case that clearly presented the question came to the court.
“This has gone on long enough,” Justice Antonin Scalia said. “The present petition presents the non-hypothetical case the court claimed to have been waiting for.” Justices Clarence Thomas and Ruth Bader Ginsburg agreed. In the case, a Washington, D.C., jury found three men guilty of selling small amounts of cocaine and acquitted them of racketeering and conspiracy charges. Yet when U.S. District Judge Richard Roberts sentenced the three, he said he “saw clear evidence of a drug conspiracy,” and sentenced them to 18, 16 and 15 year terms, four times higher than the highest sentences given for others who sold similar amounts of cocaine.