From Law 360: Alan Ellis and Mark Allenbaugh discuss the controversial practice of using acquitted conduct for sentencing in the U.S. justice system. Acquitted conduct refers to the actions for which a defendant was acquitted but are still considered during sentencing. This practice, endorsed by the U.S. Supreme Court since 1997, has been criticized for being fundamentally unfair and potentially unconstitutional.

The Supreme Court’s stance is based on the case U.S. v. Watts, where it was argued that an acquittal does not necessarily mean the defendant did not engage in the conduct alleged, but rather that there was insufficient evidence to meet the high standard required for conviction. Therefore, a judge could use a lower standard of proof to find that the defendant engaged in such conduct for sentencing purposes.

The U.S. Sentencing Commission recently proposed an amendment to the sentencing guidelines to largely eliminate the use of acquitted conduct at sentencing. However, the commission ultimately declined to adopt this amendment, stating that more time was needed before making a final decision on such an important matter.

The Supreme Court, despite holding over a dozen petitions for certiorari on the issue, recently declined to review the constitutionality of acquitted conduct sentencing. This decision has sparked further debate and calls for the court to end this practice, even if it requires a wholesale restructuring of federal sentencing. The article concludes by emphasizing the need for the court to address this fundamentally unfair and potentially unconstitutional practice.

Read the article here.