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Critical Analysis of Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'?

49 Pages Posted: 15 Jul 2013 Last revised: 27 Aug 2014

Orhun Hakan Yalincak

University of Oxford, Centre for Criminology, Law Faculty, Alumnus; University of Durham, Alumnus; State University of New York (ESC), Alumnus

Date Written: August 21, 2014


In federal court and many state courts across the United States, once a defendant is convicted, judges are routinely permitted, and in fact, sometimes 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 article 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 offense admitted by a defendant, or proven to a judge or jury’s satisfaction beyond a reasonable doubt as only the 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 article concludes that use of acquitted conduct should be prohibited both on constitutional and normative grounds. While it is outside the scope of this article 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 United States.

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, K49

Suggested Citation

Yalincak, Orhun Hakan, Critical Analysis of Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'? (August 21, 2014). 54 Santa Clara Law Review 676 (2014). . Available at SSRN: or

Orhun Hakan Yalincak (Contact Author)

University of Oxford, Centre for Criminology, Law Faculty, Alumnus ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

University of Durham, Alumnus ( email )

Old Elvet
Mill Hill Lane
Durham, Durham DH1 3HP
United Kingdom

State University of New York (ESC), Alumnus ( email )

Vestal Parkway East
Binghamton, NY 13902
United States

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