Aaron Bengtson Professor Van Kirk WRD 104 31 October 2011 A Look Into the Powers of Judges: Real Offense vs. Charge Offense In 2005, a man named Mark Hurn was arrested and charged with possession of cocaine, along with several other cocaine-based charges. After a typical trial, Hurn was found guilty of possession of cocaine, but was acquitted for the other charges. A typical incarceration time for a possession charge is between twenty-seven and thirty-three months. However, upon sentencing, the sentencing judge used the evidence and conduct presented for the acquitted charges and lengthened Hurn’s sentence to two hundred and ten months (Sterbeck 1223-24). This elongated sentence was based almost solely on acquitted conduct based on a “preponderance of the evidence (Sterbeck 1223).” This act by the sentencing judge to enhance a criminal sentence has been debated for years in several different cases throughout the country. The main argument, however, is much more complicated than that of a simple cocaine charge and lies at the heart of our government and our Judicial System: how much power should a judge have in the courtroom, and how much power is too much power? While a malevolent judge with too much power might abuse and deprive citizens of their natural rights, a judge with too little power would fail to see justice done and crime would be even higher than it already is. The key to the judicial system is to regulate the powers given to judges and further the checks-and-balances system that has kept the United States from failing since its inception.
Bengtson 2 In the case against Mark Hurn, Hurn’s sentence was increased by the judge due to the acquitted conduct by a preponderance of the evidence. In a criminal case such as this, the prosecution must prove to a jury without a reasonable doubt that Hurn was guilty of the charges set upon him. They were able to do this for the charge of possession of cocaine, but were unable to for the other cocaine-based charges. However, upon sentencing, the judge was able to look at the entire case and make a decision about the evidence shown. Similar to that of a civil case, if it seemed more likely than not that the defendant was guilty, but not beyond a reasonable doubt, then the judge is allowed to extend the sentence of the defendant without the consent of the jury. This system is called the Real Offense System, where the defendant is charged based on all of the circumstances surrounding the trial, rather than a Charge Offense System, where the defendant is sentenced solely on the charges of which he was convicted (Sterbeck 1223- 27). The Charge Offense System would never be able to be used practically in United States society. As Megan Sterbeck elaborates on the subject in the Touro Law Review , she explains that the Charge Offense System “is a very systematic and straightforward approach where a pre-determined punishment for a crime in which a defendant has been convicted is issued (Sterbeck 1228).” While the U.S. emphasizes that all men are created equal and that they shall be tried equally, no one crime is quite the same as another. Each
- Winter '08
- Law, criminal law, Charge Offense System, Real Offense, Mark Hurn