The Sixth Amendment to the U.S. Constitution guarantees that all persons prosecuted for a crime have the right to be judged by an impartial jury. Yet the prevailing rule in all the federal circuits allows a sentencing court to increase a defendant’s sentence based on one or more crimes of which he was acquitted at trial. While still a minority voice, there is a growing chorus—from the bench and bar—calling into question the constitutionality and fundamental fairness of this rule, which has been called a “repugnant” and “uniquely malevolent” aspect of the current federal sentencing regime.1
This article reviews the traditional arguments cited to support the use of acquitted conduct at sentencing, explores the more persuasive legal and policy reasons for forbidding consideration of such unproven allegations, and suggests specific arguments that can be made by practitioners within the U.S. Court of Appeals for the Second Circuit whose clients face the unfortunate prospect of an increased sentence on the basis of acquitted conduct.
‘United States v. Watts’
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