Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'?
Orhun Hakan Yalincak
August 13, 2013
Santa Clara Law Review, Forthcoming
The use of acquitted at sentencing is a highly contested practice in sentencing theory and policy. In federal court and many state courts across the United States, once a defendant is convicted, judges are routinely permitted, in fact, required to increase a defendant’s sentence based on relevant conduct, of which he was acquitted at trial, or conduct for which he was never charged. This essay highlights the issues that arise from the use of acquitted conduct sentencing under the now advisory U.S. Sentencing Guidelines. The use of acquitted conduct under the relevant conduct provisions of the Guidelines has resulted in substantially longer prison sentences with a disparate impact on racial and ethnic minorities. Acquitted conduct sentencing treats the offence admitted by a defendant, or proven to a judge or jury’s satisfaction beyond a reasonable doubt as simply a starting point in calculating a defendant’s sentence; the modified real offense approach, which incorporates relevant conduct and mandates consideration of acquitted conduct, determines the end sentence. This essay concludes that use of acquitted conduct should be prohibited both on constitutional and normative grounds. While it is outside the scope of this essay to offer a comprehensive solution or alternative to the use of acquitted conduct at sentencing, the key observation is that, since the common thread linking the constitutional and normative issues arise from the fragmented nature of U.S. sentencing policy, the solution must start with re-conceptualizing the theories underlying sentencing in the U.S.
Keywords: state punishment, theories and rationales of punishment, acquitted conduct sentencing, relevant conduct, sentencing guidelines, sentencing rationale, role of jury
JEL Classification: K14, K19, K30, K40, K41, K42, K49Accepted Paper Series
Date posted: July 15, 2013 ; Last revised: January 31, 2014
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