Not Guilty: The Case Against Acquitted Conduct Sentencing

 /  Jan. 31, 2023, 5:10 p.m.

The Supreme Court of the US

Joe Ravi

The Supreme Court has not acted to reform acquitted conduct sentencing, but will that change soon?

Vernon Watts had a problem. Having been convicted of possession with intent to manufacture or dispense cocaine base, he was facing a prison sentence of slightly more than 15 years. Luckily, though, the jury for his trial had acquitted him of the more serious crime with which he had been charged–using and carrying a firearm in relation to drug trafficking–a conviction which would have dramatically increased his sentence. However, despite his acquittal, on May 11, 1994, Judge William B. Shubb handed down a sentence of nearly 22 years in prison and five additional years of supervised release, dramatically more than the roughly 15 years suggested by sentencing guidelines and, in fact, in excess of the statutory maximum sentence for the charge on which Watts was convicted.

The reason? Judge Shubb determined by a “preponderance of the evidence” standard (a lower evidentiary standard than the “beyond a reasonable doubt” standard required by law for criminal convictions) that Watts had used a firearm in relation to his drug trafficking offense and sentenced him accordingly. In effect, Watts was sentenced to serve a six-year prison term on the basis of a crime of which he had been acquitted. On appeal, the 9th Circuit Court of Appeals found the rationale behind Watts’ sentence to be improper, vacated the sentence, and remanded the case to district court for resentencing. However, the government was then granted a writ of certiorari before the Supreme Court. The question was set before the Court: can a federal judge send a defendant to prison on the basis of a charge of which he has been acquitted? Disturbingly, in a 7-2 decision, the court answered yes.

In so doing, the Supreme Court established the doctrine of acquitted conduct sentencing and has since declined repeatedly to ever reconsider the question. As a result, hundreds, maybe thousands, of years have been served in federal prison on the basis of charges for which defendants were found not guilty. Acquitted conduct sentencing is a morally repugnant doctrine which stands as an affront to our common law heritage, runs counter to the ideals and intentions of our founders, and is in fact blatantly unconstitutional. It is high time that the Supreme Court correct the profound errors of 1997 and overturn the doctrine of acquitted conduct sentencing.

Preservation of the rights of the accused and the right to due process under the law are among the oldest legal principles to which we adhere, predating even the foundation of the United States. The Magna Carta, the foundational document of the English common law tradition, codified the right to due process and a trial by jury in the 13th century: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Even the English Bill of Rights, a document whose primary purpose was to codify the supremacy of the British Parliament in legislation, set aside space to reaffirm the right to a trial by jury. The English common law tradition, including these principles preserving the rights of those accused of and tried for crimes, has served as the basis of the American legal system since its inception. 

In fact, the failure of the United Kingdom to properly provide trial by jury in the American colonies was a chief impetus for the American Revolution and the establishment of an American legal system that provides explicit protections for the right to due process under the law and the right to trial by jury. In an effort to enforce the Navigation Acts, the Stamp Act, and other commercial restrictions, the British government commanded that those in the American colonies accused of violating these statutes be tried in Admiralty Courts, in which rulings were issued exclusively by lone judges. This policy served as the basis for Grievance 18 in the Declaration of Independence and solidified a commitment by the Founders to provide for trial by jury in the American legal system. 

Acquitted conduct sentencing irreparably damages the protections of due process and trial by jury by dramatically reducing the evidentiary standard incumbent upon judges in sentencing defendants. The lower standard for sentencing (“preponderance of the evidence” rather than “beyond a reasonable doubt”) established by the acquitted conduct sentencing doctrine essentially allows the imposition of guilt in situations where guilt could not in fact be established with the rigor required for a guilty verdict, stripping away the protections of due process.

The original authors of the American legal system clearly regarded the right to trial by jury as critically important to the establishment and preservation of a free and fair government and system of justice. John Jay said in his Address to the People of Great Britain “that we [British subjects in the American colonies] claim all the benefits secured to the subject by the English Constitution, and particularly that inestimable one of Trial by Jury.” James Madison wrote that “Trial by jury. . . is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” Thomas Jefferson penned a letter to Thomas Paine in which he mused that “[he considers trial by jury] as the only anchor, ever yet imagined by man, by which government can be held to the principles of its constitution.” The ideas of these men serve as the philosophical underpinning of the American legal system itself, and are clearly visible in the American law conceived of by our founders. By allowing the doctrine of acquitted conduct sentencing to persist in depriving defendants of the right to a true trial by jury, the Supreme Court challenges the intentions, ideas, and principles of the Founding Fathers, and offends the very philosophical foundation of the American legal system. 

That foundation is clearly visible within the U.S. Constitution. Amendments V and XIV forbid that any person be “deprived of life, liberty, or property, without due process of law.” Acquitted conduct sentencing deprives defendants of life, liberty, and property without due process of law by dramatically reducing the evidentiary standard required in sentencing, as Justice John Paul Stevens argued in dissent in United States v. Watts. He wrote, “The [1984 sentencing reform] statute should be construed in the light of the traditional requirement that criminal charges must be sustained by proof beyond a reasonable doubt. . . The notion that a charge that cannot be sustained by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so proved is repugnant.” Additionally, Amendment V protects individuals from being “subject for the same offence to be twice put in jeopardy of life and limb.” Judicial fact-finding at sentencing, the foundation of sentencing on the basis of acquitted conduct, violates this protection by allowing defendants to be tried twice for the same charges—once during a jury trial, and again during a sentencing hearing. 

Furthermore, Amendment VI guarantees that defendants have the right to receive a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Acquitted conduct sentencing strips away the protections of a trial by jury by unconstitutionally creating a functional judge’s veto on the decisions of a jury. Under the doctrine of acquitted conduct sentencing, judges are able to sentence defendants on the basis of how they would have liked that the defendant be found, or on the basis of how they personally judge the defendant’s guilt. This judicial discretion completely eviscerates the protections afforded by trial by jury; regardless of the judgment reached by a panel of his peers, a defendant can still functionally have guilt thrust upon him at the whim of a lone sentencing judge. 

Finally, Amendment VIII forbids that “cruel and unusual punishments [be] inflicted.” In my view, any punishment whatsoever inflicted under the auspices of the acquitted conduct sentencing doctrine falls into the category of cruel and unusual, as the basis under which the punishment was implemented is entirely arbitrary. Using the previously mentioned issue in United States v. Watts as an example, Watts had about six years added to his prison sentence on the basis of the firearm charge of which he was acquitted. To me, that six-year prison term represents a cruel and unusual punishment since it was implemented not only without the input of a jury, but contrary to the counsel and judgment of a jury as well. When Judge Shubb asked how the jury found the defendant on the firearm charge, the foreman answered, “Not guilty.” So, for Watts to be punished by the court in any manner whatsoever for that crime is cruel and unusual because it was a crime of which he was not guilty. In addition to being a barbaric practice, it is a clear violation of Amendment VIII to punish individuals for crimes for which they are not guilty. Consequently, acquitted conduct sentencing is unconstitutional because it hands down penalties to defendants which not only lack any basis in a crime committed, but in fact are handed down in spite of a determination that the defendant did not commit the crime in question. It is therefore painfully clear that acquitted conduct sentencing not only clashes with our implicit moral, liberal, and common law traditions, but also violates explicit provisions of the United States Constitution designed to protect against the very overreaches which acquitted conduct sentencing perpetrates.

So the question remains: why does the Supreme Court continue to allow acquitted conduct sentencing to stand when it is so clearly unconstitutional? The reality is that the Court has an opportunity during this term to strike down acquitted conduct sentencing and correct the erroneous 1997 ruling of the Rehnquist court. There is currently a case docketed, McClinton v. United States, which concerns a case in which defendant Daytona McClinton had a sentence increased on the basis of a charge of which he was acquitted. A ruling in favor of the defendant in this case would overturn the unconstitutional practice of acquitted conduct sentencing. The Supreme Court has a moral and constitutional responsibility to grant certiorari for McClinton and rule in favor of the defendant in this case. 

Since 1997, the Court has never granted certiorari for an acquitted conduct sentencing case (see Ludwikowski v. United States, Osby v. United States, etc). However, the composition of the court has almost entirely changed since United States v. Watts (Justice Clarence Thomas is the only Justice currently seated on the court who ruled in Watts), and encouragingly, some Justices have publicly expressed discomfort with the constitutionality of acquitted conduct sentencing. The Congressional Research Service reports that “Justice Gorsuch and. . . [then] Judge Brett Kavanaugh. . . have suggested during their tenures as Circuit judges that they may view judicial fact-finding at sentencing to be constitutionally problematic.” As a result, the death knell could sound for the barbarism of acquitted conduct sentencing, if only the Supreme Court acts on the opportunity before it.

The image featured in this article is licensed from reuse under the Creative Commons 3.0 International license. No changes were made to the original image, which was taken by Joe Ravi and can be found here.

Spencer Dalton


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