Mark Hebert

Free Mark Hebert:

After Having Been Convicted of Relatively Minor Nonviolent, White-Collar Crimes Yielding a Sentencing Range of 3 - 5 Years in Prison, a Federal Judge Sentenced Mark to Life in Prison for an Uncharged, Untried Murder.

A former Louisiana sheriff's deputy Mark Hebert pleaded guilty to relatively minor nonviolent, white-collar offenses that yielded a sentencing range of 3 - 5 years. At sentencing, however, Mark was blindsided: the judge used an UNCHARGED, UNTRIED murder to impose a 92-year federal sentence (there is no parole in the federal system). Put differently, first-time, low-level, nonviolent offender Mark Herbert was sentenced to DEATH BY IMPRISONMENT for a crime he was never charged with much less convicted of—no indictment, no jury trial, no guilty verdict. The Justice Project is currently working on the case. Regarding his past appeal, Mark's case got national attention. The nation's preeminent federal sentencing law scholar Professor Douglas A. Berman as well as the National Association of Criminal Defense Attorneys filed amicus briefs, but to no avail.

This is the most extreme abuse of the federal sentencing scheme in the 30-plus-year history of the U.S. Sentencing Guidelines. 

Mark's sentencing attorney summed it up perfectly: "The consequences were devastating: a 92-year sentence driven by a sentencing factor outside the facts of his conviction. Permitting the criminal justice process to function in this way blows a gaping loophole in the Bill of Rights, allowing an end-run around its critical protections for the accused in criminal cases.”

The brightest legal minds in the country have openly denounced this practice, calling it an end-run around the Constitution.

With that, we denounce countries like Russia for their unfair system of justice. Sure, the American federal justice system masks the realities in ways that obscure injustice with a veneer of pseudo-process and procedure, putting a phony gloss of reliability on the proceedings. But the proceedings are one-sided, superficial, and hollow, in which the result is baked into the process. And that's the beauty of it. 

Speaking out against this practice, Judge Lay for the Eighth Circuit Court of Appeals pointed out, "If the former Soviet Union or a third world country had permitted [sentencing based on uncharged crimes], human rights observers would condemn those countries." More recently, then-U.S. Court of Appeals judge, now Supreme Court Justice Kavanaugh echoed that sentiment: "Allowing judges to rely on...uncharged conduct to impose a higher sentence than they otherwise would impose seems a dubious infringement of the rights of due process and jury trial." Kavanaugh added, "If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don't you have a right to have a jury find a beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence." U.S. v. Bell, 803 F.3d 926, 928 (D.C. Circuit 2015).

Similarly, when now U.S. Supreme Court Justice Gorsuch was an Appeals Court Judge for the Tenth Circuit, he questioned the constitutionality of this practice, pointing out, "Known as relevant conduct, judge-found facts which often include uncharged and even acquitted conduct driving federal sentences, often increasing terms of imprisonment by years and even decades." 

In 2007, in Jones v. United States, four U.S. Supreme Court Justices were fed up with the practice of allowing the government to convict a defendant of one relatively minor crime only to base his punishment primarily on entirely separate uncharged crimes or other uncharged criminal conduct—and so they wanted to outlaw the practice as unconstitutional. There, they made this emphatic statement: "The Court of Appeals have uniformly taken our [The Supreme Court] continuing silence to suggest that the Constitution does permit unreasonable sentences supported by judicial fact-finding, so long as they were within the statutory range." The court added, "This has gone on long enough." (Emphasis added.)

However, the majority in the high court refused to take on the issue. But that was quite a while ago. With three new Supreme Court Justices—Kavanaugh, Gorsuch, and Jackson—having been appointed since then who have spoken out against the practice, the Supreme Court might have the votes if the issue is revisited.

In a 2017 Supreme Court case, Nelson v. Colorado, the court emphasized the paramount importance of the presumption of innocence in the American justice system. There, the Court asked how the government can use separate uncharged crimes as a vehicle to add additional punishment to the crime of conviction if, in this country, our system of justice says the criminally accused are presumed innocent until proven guilty. The court there issued a ruling that some scholars say actually stands for the proposition that entirely separate uncharged, untried crimes cannot be used to enhance the sentence of a separate crime of conviction. 

The nation's most highly regarded legal scholars have also weighed in on the issue. Allan Ellis, a national expert on federal sentencing law, and Mark Allenbaugh, former sentencing commission lawyer, explained, in an interview with The News, that the relevant conduct loophole is "an end run around the Constitution." "Defendants don't realize this when they go to trial or plead guilty." He added, "If the evidence is strong enough, the government should charge the defendant with a crime and let the jury decide rather than slip it in during sentencing." 

When Ohio State Law Professor/legal scholar Douglas Berman explained this concept to his class, he said that his students thought he was playing a joke on them. I think that says it all. Berman himself has shed light on this unfair practice in detailed studies. The list of highly regarded people in the legal community who denounce this practice goes on and on; there are far too many to note here. 

Any system of “justice” that allows a man to be sentenced to life in prison without parole for a murder he was never charged with, tried for, or convicted of, is a system of justice only in name.

If the government can sentence Mark to death by imprisonment for a murder he was never charged with much less convicted of, what can it do to you?