Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentences in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and over the summer I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

Excitingly, Michael Pepson and Jeremiah Mosteller have this new Bloomberg Law commentary, headlined "US Supreme Court Should Tackle Acquitted Conduct Sentencing," which focuses on the McClinton cert petition and makes this notable assertion: "Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum."  Here is more from the piece that I recommend in full (with links from the original):

This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime.  This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion.

At least three current justices have questioned or called for an end to this unjust practice. And they do not stand alone, as other recent members of the court have also noted this issue demands action, including former justices Antonin Scalia, Ruth Bader Ginsburg, and Anthony Kennedy.

There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.

The justices are not alone.  For years, many lower federal court judges have also forcefully argued that acquitted conduct sentencing is unconstitutional.  And a growing number of state courts have also broken ranks with the federal courts, calling this sentencing practice what it is: unconstitutional.

This broad criticism underscores the appalling nature of this practice.  It is not only unjust to defendants but also undermines the legitimacy of our criminal justice system and eviscerates the role of juries as a check on government abuse and overreach.

We both frequently have conversations with friends, advocates, and partners who have no idea this practice occurs.  The response is always shock and confusion about how such a practice can exist in America.  This horrified reaction mirrors our own, which is why we continue to advocate for the end of this practice.

The Supreme Court has a perfect opportunity to reconsider this practice by accepting a case called McClinton v. United States. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?