A Look at the Use of Acquitted Conduct in Sentencing

By Beutler, Erica K. | Journal of Criminal Law and Criminology, Spring 1998 | Go to article overview

A Look at the Use of Acquitted Conduct in Sentencing


Beutler, Erica K., Journal of Criminal Law and Criminology


United States v. Watts, 117 S. Ct 633 (1197) (per curiam)

I. INTRODUCTION

In United States v. Watts,(1) the United States Supreme Court addressed whether sentencing courts, when determining a convicted defendant's sentence, may consider conduct relating to charges of which the defendant was acquitted. The Court held that a "not guilty" verdict does not preclude a sentencing court from considering the conduct underlying the acquitted charge so long as that conduct is proved by a preponderance of the evidence.(2) In so doing, the Court resolved a circuit split in which the Ninth Circuit alone maintained that a sentencing court may not consider acquitted conduct.(3) However, as Justice Kennedy pointed out in his dissent, the Court left several matters unresolved.(4) For example, the Court did not address concerns about undercutting a verdict of acquittal, the distinction between uncharged conduct and conduct related to a charge for which the defendant was acquitted, nor the effect of the Sentencing Reform Act of 1984 on this issue.(5)

This Note argues that the Court's decision also ignored important constitutional considerations. The use of acquitted conduct in sentencing raises due process and double jeopardy concerns that deserved far more careful analysis than they received. The fundamental differences between uncharged and acquitted conduct which trigger these constitutional concerns should have been noted and discussed. Finally, this Note asserts that the United States Sentencing Commission has the authority to amend the United States Sentencing Guidelines, even to the extent it proposes a change contrary to the Court's decision with regard to acquitted conduct.

II. BACKGROUND

A. THE UNITED STATES SENTENCING GUIDELINES

1. History

Before the promulgation of the United States Sentencing Guidelines(6) federal judges exercised liberal and virtually unreviewable(7) discretion in sentencing.(8) Stemming from the differences in judges sentencing philosophies, this breadth of discretion led to a wide unwarranted disparity in sentences imposed on defendants convicted of similar crimes.(9) While the federal courts lacked a uniform system of sentencing, many judges took into account the reality that the defendant typically would be paroled after serving only one-third of his or her sentence.(10) Anticipating parole, these judges regularly sentenced offenders to much longer terms than they actually intended the individuals to serve.(11)

Concerned about the implications of incongruous sentencing results and the uncertainty caused by indeterminate sentencing,(12) Congress passed the Sentencing Reform Act of 1984 (the Act).(13) By establishing uniform rules to guide the federal courts in sentencing, Congress hoped the Act would correct the gross disparities in sentencing, infuse a sense of proportionality, and restore systemic integrity by requiring courts to impose sentences that offenders would actually serve.(14) Toward these ends, Congress also provided for appellate review of sentencing(15) and abolished the parole system.(16)

The Act created the United States Sentencing Commission as an independent agency in the judicial branch.(17) The Commission was "comprised of seven members (including three federal judges) appointed by the President, confirmed by the Senate, and instructed to write, by April 1987, sentencing guidelines which would automatically take effect six months later unless Congress passed another law to the contrary."(18)

The federal judiciary initially greeted the Guidelines with hostility.(19) It was not until the Supreme Court upheld their constitutionality in United States v. Mistretta(20) that the federal courts began imposing the Guidelines in earnest.(21)

2. How the Guidelines Work

Determination of an offender's sentence typically begins with a recommended sentence from the probation department. …

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