The Congressional Research Service’s Legal Sidebar discusses the controversial practice of using acquitted conduct to enhance federal sentences. This refers to the practice where a defendant’s sentence is increased based on conduct related to charges for which they were acquitted. View the research paper here.

In the case of McClinton v. United States, the defendant was part of a group that robbed a pharmacy. Although the jury convicted the defendant of robbery, they acquitted him of murder. However, the judge found that the defendant was responsible for a death that occurred during the robbery and enhanced his sentence from five to six years to nineteen years.

The Supreme Court was asked to review this case to determine if the use of acquitted conduct to enhance sentences is consistent with the Fifth and Sixth Amendments. The court denied review, with several justices stating they were waiting for the U.S. Sentencing Commission to act.

The Commission is currently studying the use of acquitted conduct in the U.S. Sentencing Guidelines and plans to vote on changes next year. These guidelines are used by federal judges as a starting point when determining an appropriate sentence for a federal defendant.

The Sidebar also discusses the Commission’s preliminary and current approach to acquitted conduct, some judicial commentary on the use of acquitted conduct in sentencing decisions, and the Commission’s initial proposed amendment to the Guidelines on acquitted conduct. It concludes with some considerations for Congress.

This issue raises important questions about the fairness of the criminal justice system and the rights of defendants. It will be interesting to see how the U.S. Sentencing Commission and Congress address this issue in the future.