The Supreme Court will decide when it meets next on January 6 whether to take up the practice of a judge levying punishment for conduct of which a jury has already acquitted a suspect.
One case that the Court is set to take into consideration, for example, is that of Dayonta McClinton. A jury found him guilty in 2018 of robbing a CVS pharmacy roughly three years earlier, but they acquitted him of a murder that occurred during the robbery, which had involved five others. Then the judge in his case tacked 13 extra years onto his sentence for the murder anyway. McClinton was 17 at the time of the robbery but was tried as an adult for the crime.
The newest Justice on the Supreme Court, Ketanji Brown Jackson, previously served on the U.S. Sentencing Commission. “She is someone who we’d have good reason to believe would be troubled by the continued use of acquitted conduct,” Douglas Berman, an expert on sentencing at the Ohio State University law school, told the Associated Press. He filed a brief calling on the Court to take up McClinton’s case.
Jackson replaced Justice Stephen Breyer, who generally favored giving judges discretion in imposing prison sentences.
At least two of the conservative Justices, Neil Gorsuch and Brett Kavanaugh, voiced concerns about punishing acquitted conduct when they served as appeals court judges. “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial,” Kavanaugh wrote in 2015.
Seventeen former federal judges have signed on to the brief in support of McClinton, whose lawyers argue that intervention by the Supreme Court 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,” his lawyers wrote.
Meanwhile, the Department of Justice is urging the court to reject McClinton’s appeal.
McClinton’s is one of four cases the Justices will weigh in deciding whether to take up the issue of punishing acquitted conduct.