“Acquitted But Not Free: How Sentencing Based on Acquitted Conduct Undermines the Jury’s Purpose”

The title of this post is the title of this new student comment authored by Ethan Evans and now available via SSRN.  Here is its abstract:

Acquitted conduct sentencing is a controversial practice that allows judges to increase a defendant’s sentence based on facts tried before a jury and not found beyond a reasonable doubt.  This practice undermines the effect of an acquittal, the right to a jury trial, and due process of law.  In 1997, the Supreme Court authorized this practice under a double jeopardy challenge in United States v. Watts.  However, the Court refused to hear the drastic consequences of that decision earlier this year in 2023.  In McClinton v. United States, the district court increased a defendant’s sentence from a range of five to six years to almost twenty by finding he was responsible for murder, a charge explicitly rejected by the jury.  The Supreme Court declined to hear the issue, despite recognizing the serious constitutional concerns, stating that the proper avenue for change is the United States Sentencing Commission.  While an amendment to the United States Sentencing Guidelines may discourage the practice, an absolute prohibition on acquitted conduct sentencing is needed.

This comment outlines the problems with acquitted conduct sentencing under the Sixth Amendment’s right to a jury trial and the Due Process Clause of the Fifth and Fourteenth Amendments. Looking at the possible avenues for change, this comment critiques the United States Sentencing Commission’s newly released draft amendment restricting the use of acquitted conduct.  While the current draft amendment would limit the use of acquitted conduct to rare instances where a departure may be necessary, an absolute prohibition is required to uphold respect for a jury’s acquittal.  This is because the purpose of the jury, as envisioned by the founders, was to protect against the government unjustly depriving an individual of liberty.  Thus, a judge cannot increase a criminal penalty where the jury explicitly refuses to authorize punishment, without superseding their role as a guard against the government.