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Continuing the acquitted conduct debate and urging SCOTUS engagement

By Douglas A. Berman

This recent post noting Judge Bright separate opinion reiterating forcefully his view that acquitted conduct sentencing enhancements are unconstitutional has generated a dynamic debate in the comments about both the law and policy of a judicial decision to increase a defendant's sentence based on evidence of conduct that a jury determined was insufficient for a formal conviction.  Because there is so much to worthy of saying in this arena, I have done this post to foster continued dialogue. One topic of particular concern for me (and it seems also for Judge Bright) is the Supreme Court's disinclination to fully engage this consequential federal sentencing issue.  Back in 1997 when the Supreme Court formally addressed this issue in Watts, it did so through an opaque per curiam summary reversal...continue to full post

Full post as published by Sentencing Law and Policy on July 18, 2009 (boomark / email).