Shouldn’t not being sentenced based on acquitted conduct be one “of the benefits of Trial by Jury”?

In many years past, I have leaned into feedom and liberty themes for a July 4th post (see partial round up here).  But last year’s July 4th post focused on acquitted conduct sentencing, and I cannot resist returning to the topic after an notable year on this front. 

As a reminder of why this is a fitting July 4th topic, recall that in the Declaration of Independence, approved 248 years ago today, the founders of this Nation complained of a “long train of abuses and usurpations” by “the present King of Great Britain,” which included “depriving us in many cases, of the benefits of Trial by Jury.”  As suggested in the title of this post, I consider being sentenced more severely by a judge on the basis of conduct that led to a jury acquittal at trial to be a deprivation of one “of the benefits of Trial by Jury.”   Consequently, I view acquitted conduct sentencing to be inconsistent with key principles stressed by our Nation’s founders and at our Nation’s founding.

Notably, this portion of our Declaration of Independence was stressed in two recent Supreme Court constitutional rulings.  In Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), Justice Gorsuch writing for the Court on behalf of six Justices cited this provision: “Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had ‘depriv[ed] [them] in many cases, of the benefits of Trial by Jury.’ ¶ 20.”  And in SEC v. Jarkesy, No. 22–859 (S. Ct. June 27, 2024) (available here), Chief Justice Roberts writing for the Court on behalf of a different group of six Justices also cited this provision:  “And when the English continued to try Americans without juries, the Founders cited the practice as a justification for severing our ties to England. See Declaration of Independence ¶ 20.”

I fear that these two recent constitutional rulings, vidicating the Sixth and Seventh Amendments’ jury trial rights, do not ensure or even increase the likelihood that the Supreme Court will soon take up and reverse jurisprudence permitting acquitted conduct sentencing.  But they do give me just a little more hope that, as some point in the future, a time will come in which courts recognize and vindicate the reality that acquitted conduct sentencing is inconsistent with our founding principles and our commitment to democratic self-governance.

Thankfully, this past year has seen a (small) step forward in the form of a new amendment to the federal sentencing guidelines which provides that the guideline range can no longer be based on “conduct for which the defendant was criminally charged and acquitted in federal court.”  Though an incomplete remedy and many decades too late, I am still pleased that the US Sentencing Commission has partially restored one “of the benefits of Trial by Jury” that our founders went to war to vindicate.  I am also encouraged that Congress continues to vote in strong support of the “Prohibiting Punishment of Acquitted Conduct Act,” though this bill disappointingly has not yet make it through the full legislative process.  

In the end, especially on a day like today, I remain drawn to the core notion that our sentencing laws in general, and acquitted conduct sentencing rules in particular, are matters fundamentally about our national and constitutional values.  I hope to see our founding values soundly reflected in these laws and rules.