No fact about federal criminal practice so consistently astounds and frequently disgusts the uninitiated, lawyers and non-lawyers alike, as the fact that you can be imprisoned for decades based on conduct that a jury finds you not guilty of committing. Such a seemingly unfair and incongruous outcome is possible and not uncommon thanks to the concept of acquitted conduct sentencing, which is codified in and, to a certain extent, required by the United States Sentencing Guidelines. While the Supreme Court has so far declined to directly address the constitutionality of acquitted conduct sentencing, courts of appeals have taken the Court’s silence as approval and uniformly affirmed the constitutionality of sentences based largely on acquitted conduct since the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997), which approved acquitted conduct sentencing but failed to adequately address the constitutional concerns.
However, with the recent growth in bipartisan support for federal criminal sentencing reform, a possible path now exists to ending the practice without the Supreme Court having to consider the issue and without having to deal with the potential consequences of ruling the practice unconstitutional. Abolishing acquitted conduct sentencing would not only serve to reduce the harshness of sentences dispensed by federal courts, thus reducing the federal prison population, but would also end a practice widely thought blatantly violative of defendants’ Fifth and Sixth Amendment rights. This article explores the state of the law surrounding acquitted conduct sentencing and argues that Congress should do what the Supreme Court has been unwilling to do and abolish acquitted conduct sentencing.