A reminder of why “acquitted conduct” sentencing enhancements should be seen as a constitutional abomination

I am only through the first part of the Supreme Court’s first opinion in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here), which finally declares that the Sixth Amendment jury trial right, as incorporated against the states, requires unanimous juries for conviction.  I was drawn back to blogging because a passage early in Justice Gorsuch’s opinion for the Court reminder me why “acquitted conduct” sentencing enhancements still make me crazy.  Here are the passages from the Ramos opinion slip op. at 3-4) to set the table (emphasis in original):

The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Amendment goes on to preserve other rights for criminal defendants but says nothing else about what a “trial by an impartial jury” entails.

Still, the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down.  Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely abridged by statute.  Imagine a constitution that allowed a “jury trial” to mean nothing but a single person rubberstamping convictions without hearing any evidence — but simultaneously insisting that the lone juror come from a specific judicial district “previously ascertained by law.” And if that’s not enough, imagine a constitution that included the same hollow guarantee twice — not only in the Sixth Amendment, but also in Article III.  No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial.

Here is how the second paragraph could and should be modified if (and I hope when) the Supreme Court finally sees it needs to give the jury trial right real meaning by limiting sentencing enhancements based on acquitted conduct:

Still, the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down.  Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely overridden by judges at sentencing.  Imagine a constitution that allowed a “jury trial” to mean nothing but a single judge rotely enhancing sentences without regarding any acquittals — but simultaneously insisting that jurors not be told that acquitted conduct will be used to make guideline calculations “previously ascertained by law.”  And if that’s not enough, imagine a constitution that included the same hollow guarantee twice — not only in the Sixth Amendment, but also in Article III.  No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a judge’s sentencing acquittals by a jury trial. See generally Blakely v. Washington, 542 U. S. 296 (2004).

I obviously added the citation to Blakely, in part because I continue to by aghast that the Justices have work so hard to avoid confronting the this issue for now 16 years since it handed down the opinion that should have helped bring the ugliness of acquitted conduct enhancement to an end.