Federal and state laws provide sentencing guidelines for those convicted of criminal offenses. The basic rules set minimum and maximum terms for most crimes. In Arizona, for example, A.R.S. 13-702 provides presumptive, minimum, maximum, mitigated and aggravated terms for Class 2 through Class 6 felonies.
The question, however, is what factors can be considered by the sentencing court after a defendant has been convicted. Specifically, federal law permits what is known as “acquitted conduct sentencing.” Under this practice, a court may consider in its sentencing decision, under some circumstances, criminal conduct for which the jury has found the defendant not guilty. It seems strange, counterintuitive, and just plain wrong that the court could base its sentencing decision – in particular its decision to increase a defendant’s sentence – on an offense for which the defendant has been acquitted.
If you find the practice disturbing, you are not alone. Several bills have been introduced in Congress in recent years which, if passed, would prohibit punishment (lengthening the sentence) based on conduct for which the defendant has been acquitted. One of the more recent versions is S.601 (Prohibiting Punishment of Acquitted Conduct Act of 2021).
Back in 1997, the acquitted conduct sentencing issue was addressed by the United States Supreme Court in United States v. Watts, 519 U.S. 148 (1997). In that case, the Court explicitly sanctioned the use of acquitted conduct when sentencing a defendant, against a charge that it violated the constitutional prohibition against double jeopardy. Similar arguments have been made in other cases over the years, questioning the practice on Fifth and Sixth Amendment grounds.
More recently, in United States vs. McClinton, 23 F.2d 732 (2022), the 7th Circuit Court of Appeals was presented with the issue. In that case, McClinton and others robbed a pharmacy of drugs, and McClinton allegedly shot another member of the group after the robbery. McClinton was charged with two counts of robbery, brandishing a firearm, and causing the death of one of the other robbers. The case was presented to a jury, which found McClinton guilty of two of the charges against him; he was acquitted on the other counts, including causing the death of his accomplice.
At sentencing, the government urged the court to consider the death as conduct relevant to the sentence to be imposed. The court agreed, found that McClinton was responsible for the death by a preponderance of the evidence, and sentenced the defendant to 20 years (240 months) in prison. Absent the consideration of the death, the maximum sentence would have been 71 months. The matter is now pending before the Supreme Court.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028