Acquitted conduct sentencing is unconstitutional
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Acquitted conduct sentencing is unconstitutional

The Supreme Court, Congress, the U.S. Sentencing Commission, and individual states all have an opportunity to act on acquitted conduct sentencing.

Erick Allen Osby was arrested on Sept. 27, 2018, and indicted on seven charges. Investigators recovered a gun, money, and drugs from a hotel room that Osby partially paid for several days prior to his arrest. On the day of his arrest, Osby was surveilled by police, allegedly engaging in behavior that suggested he was selling drugs. Officers later pulled over a vehicle Osby was in, seized drugs and a firearm, and took Osby into custody.

Of the seven charges Osby was indicted on, he was convicted of two and acquitted of the other five. His convictions included two counts of possession of drugs with intent to distribute (the drugs found in the vehicle). For the charges he was convicted of, the guideline range for his sentence would have been 24-to-30 months. However, Osby was sentenced to 84 months in prison.

What is the difference between the two? Acquitted conduct sentencing.

Acquitted conduct sentencing essentially allows federal judges to consider any “relevant conduct” in determining sentences. This conduct can include crimes that the defendant has been acquitted of or even crimes which the defendant was not formally charged with.

“Known as acquitted conduct sentencing, the practice allows judges to bloat a prison term when sentencing a defendant by punishing them for a separate charge or charges on which a jury deemed them not guilty,” writes’s Billy Binion.

While juries must consider whether the evidence presented proves guilt beyond a reasonable doubt, judges are held to a lower standard—a preponderance of evidence—for additional conduct that can be considered during sentencing.

Many judges have asserted that acquitted conduct sentencing violates criminal defendants’ Fifth Amendment right to due process and their Sixth Amendment right to trial by jury. U.S. Supreme Court Justice Brett Kavanaugh shared his disapproval of acquitted conduct sentencing many times before his appointment to the U.S. Supreme Court. In a 2008 opinion, Kavanaugh wrote, “allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the right to due process and to a jury trial.”

Former Supreme Court Justice Antonin Scalia also noted that facts considered against a defendant to extend their sentence should be found by the jury or admitted by the defendant, “it may not be found by a judge.”

On the other hand, circuit courts all over the country have found the practice to be appropriate in accordance with the 1997 Supreme Court decision in United States v. Watts. In a 7-2 decision, the Supreme Court ruled that acquitted conduct sentencing is constitutional and does not violate the double jeopardy clause, citing the United States Sentencing Commission’s guideline manual:

In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U. S. C. § 3661.

Following his sentencing, Osby petitioned for a writ of certiorari from the United States Supreme Court. The question presented to the court is whether the practice of using acquitted conducted to enhance a defendant’s sentence violates their Fifth and Sixth Amendment rights. Osby’s petition was denied by the Supreme Court in October 2021.

However, the Supreme Court may soon reconsider acquitted conduct sentencing in the case of 17-year-old Daytona McClinton. Reason magazine reported:

In 2015, when he was 17, Dayonta McClinton and five accomplices robbed a CVS pharmacy in Indiana at gunpoint. Federal prosecutors also alleged that McClinton shot and killed one of his accomplices, Malik Perry, during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy and brandishing a gun during that crime but acquitted him of robbing and killing Perry.

U.S. District Judge Tanya Walton Pratt nevertheless granted the government’s request that McClinton serve time for causing Perry’s death. Taking into account his prior criminal record, the sentencing guidelines recommended a prison term of 57 to 71 months for the convictions. McClinton instead received a sentence of 228 months—19 years. Pratt said Perry’s murder was “the driving force in this sentence.”

The case vividly illustrates how defendants can be punished for crimes even when a jury finds them not guilty of those offenses…

Seventeen retired federal judges, appointed by both Republicans and Democrats, also filed a brief supporting McClinton’s appeal. They argue that the “simple and straightforward solution to this problem” is to rule that “no alleged conduct upon which a jury has acquitted a defendant should be used to enhance the defendant’s penalty for any crime.”

Acquitted conducted sentencing is standard practice for federal circuit courts. Moreover, according to the Due Process Institute, 40 states and the District of Columbia either implicitly or explicitly permit acquitted conduct sentencing. Among the 10 states that prohibit acquitted conduct sentencing, only four prohibited the practice through statutory or regulatory sentencing guidelines.

In the remaining six states, court decisions have banned the practice. For example, the Michigan Supreme Court’s ruling in  People v. Beck ended acquitted conduct sentencing in the state. The question before the Michigan Supreme Court in People v. Beck was whether a sentencing judge could sentence a defendant for a crime of which the defendant was acquitted. The court held that they could not, reasoning that “once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.”

At the federal level, Congress has considered three bills—the Prohibiting Punishment of Acquitted Conduct Act of 2019, the SAFE Justice Act, and the Jobs and Justice Act of 2018—that sought to remove acquitted conduct from sentencing guidelines. However, since their introduction, no further action has been taken on any of these bills.

If it takes McClinton v. United States, the U.S. Supreme Court could soon reconsider the constitutionality of acquitted conduct sentencing. But Congress, the U.S. Sentencing Commission, and individual states also have an opportunity to act.