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US Supreme Court Should Tackle Acquitted Conduct Sentencing

Sept. 14, 2022, 8:00 AM

This past term, the US Supreme Court handed down a decision on federal criminal sentencing that produced an unexpected lineup of justices.

The opinion, authored by Justice Sonia Sotomayor and joined by justices Clarence Thomas, Stephen Breyer, Elena Kagan, and Neil Gorsuch, says that judges can consider post-sentencing rehabilitation and legal changes when resentencing an incarcerated person under the rules provided in the First Step Act. Groups from across the spectrum had urged the court to reach that very conclusion.

Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum.

This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime. This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion.

At least three current justices have questioned or called for an end to this unjust practice. And they do not stand alone, as other recent members of the court have also noted this issue demands action, including former justices Antonin Scalia, Ruth Bader Ginsburg, and Anthony Kennedy.

There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.

The justices are not alone. For years, many lower federal court judges have also forcefully argued that acquitted conduct sentencing is unconstitutional. And a growing number of state courts have also broken ranks with the federal courts, calling this sentencing practice what it is: unconstitutional.

This broad criticism underscores the appalling nature of this practice. It is not only unjust to defendants but also undermines the legitimacy of our criminal justice system and eviscerates the role of juries as a check on government abuse and overreach.

We both frequently have conversations with friends, advocates, and partners who have no idea this practice occurs. The response is always shock and confusion about how such a practice can exist in America. This horrified reaction mirrors our own, which is why we continue to advocate for the end of this practice.

The Supreme Court has a perfect opportunity to reconsider this practice by accepting a case called McClinton v. United States. It’s another example of how this practice plays out in the real world.

A federal district court judge used a crime for which the jury declined to convict Dayonta McClinton at trial to increase his prison sentence by more than 220%.

That is why Americans for Prosperity Foundation and many others are urging the court to at least accept this case so that it can hear arguments from both sides about the constitutionality of this concerning practice. A growing coalition of voices is also joining us in that call.

This includes organizations like the Niskanen Center, Right on Crime, the R Street Institute, the Sentencing Project, Justice, and the National Association of Criminal Defense Lawyers.

Others urging the court to reconsider this questionable practice include the National Association of Federal Defenders, FAMM, the Cato Institute, and respected federal sentencing expert Doug Berman.

There is also additional reason for hope in this case. On July 14, the Supreme Court asked the government to formally respond to McClinton’s cert petition. This suggests that there is at least some interest on the court in considering this issue, as it previously didn’t take this action in multiple prior cases.

People from across the ideological spectrum are asking the court to finally consider and resolve this issue.

This broad support for jettisoning acquitted conduct sentencing can even be seen in one of the most divided places in America—the House of Representatives—where a bill to end the use of acquitted conduct sentence passed with a nearly unanimous vote.

But even with this overwhelming support in the House, there is no guarantee the bill will pass. And in any event, some states will continue to permit consideration of acquitted conduct at sentencing because their laws will not be impacted by federal legislation.

The time has come for the Supreme Court to step in and put an end to this unconstitutional sentencing practice.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Michael Pepson serves as regulatory counsel at Americans for Prosperity.

Jeremiah Mosteller serves as a senior policy analyst at Americans for Prosperity.