Sentences Based Upon Acquitted Conduct Still Deeply Troubling

Federal courts are allowed to base their sentencing determinations in criminal cases, in part, on conduct for which a jury has acquitted a defendant (as long as the maximum sentence does not exceed the maximum sentence authorized by the crimes upon which the defendant was convicted). This is because: 

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997).

This happens something on the order of dozens of times a year. A recent example is a case out of the 7th Circuit upholding a sentence based upon a jury verdict finding a defendant guilty of robbery but innocent of murder, in which a judge imposes a sentence based upon its own contrary determination that the defendant committed murder to 228 months in prison (about twice the sentence that would otherwise have been imposed). In that case, the 7th Circuit notes that:

Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations. See, e.g., Jones v. United States, 574 U.S. 948, 949–50 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of cert.) (noting that it violates the Sixth Amendment when the conduct used to increase a defendant’s penalty is found by a judge rather than by a jury beyond a reasonable doubt, and highlighting that this is particularly so when the facts leading to a substantively unreasonable sentence are ones for which a jury has acquitted the defendant); Watts, 519 U.S. at 170 (Kennedy, J., dissenting) (allowing district judges “to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal.”); United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of the r’hrg en banc) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”). Many other circuit court judges have supported this position in dissenting and concurring opinions. 

This is still contrary to everything that the U.S. Constitution and a just criminal justice system stand for. But neither Congress nor the U.S. Supreme Court have taken action to prevent this obvious and routine injustice. It is one symptom, among many, of the deeply broken state of the U.S. criminal justice system and of the deep flaws in our political system that allow such abominations to persist.