Though the practice has provoked some concern, sentencing a defendant for what’s called “acquitted conduct” has gone on for years.
McClinton’s case and three others just like it are scheduled to be discussed when the justices next meet in private on Jan. 6.
“This has gone on long enough,” Scalia wrote in dissent from the court’s decision to reject an appeal from defendants who received longer prison terms for conspiring to distribute cocaine after jurors acquitted them of conspiracy charges. “She is someone who we’d have good reason to believe would be troubled by the continued use of acquitted conduct,” said Berman, who filed a brief calling on the court to take up McClinton’s case.who generally favored giving judges discretion in imposing prison terms. Reining in the use of acquitted conduct in sentencing would restrict judicial discretion.
Even with the testimony, jurors acquitted McClinton of the most serious charges against him. He should have faced six years in prison, at most. But Rovner noted that a growing number of federal judges “have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations.”McClinton’s lawyers argue that the high court’s intervention is past due. “Unless this Court resolves this issue, tens of thousands of criminal defendants will continue to be sentenced using sentencing practices that are impossible to square with the Constitution,” they wrote.
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