“Supreme Court Must End Acquitted Conduct Sentencing”

July 19, 2023

The title of this post is the title of this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh. Here are parts of how the piece starts and ends:

To most reasonable observers, sentencing a defendant for conduct they were acquitted of seems not only illogical and absurd, but also fundamentally unfair. And yet, since 1997, none other than the U.S. Supreme Court has endorsed the practice….

Since Watts, so-called acquitted conduct sentencing has been upheld time and again in federal courts across the country, including in many, but not all, states.

To be sure, for as long as acquitted conduct sentencing has been around, there have been significant criticisms of the practice, including by at least three current justices of the Supreme Court.

After all, if one is acquitted, then one is presumed innocent of the conduct alleged. So, punishing a defendant for conduct they are presumed innocent of appears to violate the Fifth Amendment’s due process guarantee and the Sixth Amendment’s right to a jury trial.

Unfortunately, on the last day of the court’s current term, it once again declined to review the constitutionality and logic of Watts, but not without some of the justices making notable observations.

This article discusses the recent history of efforts to curtail, if not eliminate, the use of acquitted conduct at sentencing, and the much larger implications of doing so….

It’s long past time for the three branches of government to stop tossing this sizzling sentencing potato between them. The court must finally heed Justice Scalia’s call to resolve the constitutional question once and for all, regardless of consequence.

That will then provide a foundation for the commission, with the oversight of Congress, to develop sentencing guidelines that finally comport with the U.S. Constitution. If that requires a complete overhaul of the convoluted and advisory guidelines, so be it.

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