In a criminal trial, the jury is king. It is the sole arbiter of the facts, and jurors alone decide whether the government has proven its case against a defendant beyond a reasonable doubt. But when it comes to sentencing, the judge wears the crown. Take the case of Dayonta McClinton. McClinton was charged with robbing a drugstore and then robbing and killing his co-defendant following a dispute over the proceeds. McClinton proceeded to trial and was convicted of the drug store robbery but acquitted of the robbery and murder of his co-defendant. McClinton's advisory guidelines range, based solely on the drugstore robbery, was about four to six years. Despite the jury's acquittal on the murder charge, the government nevertheless sought a 30-year sentence on the ground that the murder was "relevant conduct" that the judge should consider in calculating McClinton's guidelines range. The court ultimately agreed and imposed a sentence of 20 years' imprisonment—almost four times higher than McClinton would have faced if only the drugstore robbery charges were considered. How can a judge punish a defendant for a crime as if the jury never acquitted them? It is a question that has weighed on the minds of defense lawyers and commentators for years, and it is one that the U.S. Sentencing Commission is seeking to put to rest once and for all.

The Current Regime

The U.S. Sentencing Guidelines adopt a modified "real offense" approach to sentencing. Unlike a "charge offense" sentencing regime that focuses only on the crime(s) for which a defendant was convicted, the real offense approach looks to a broader range of conduct. Defendants are sentenced based on the conduct they engaged in, regardless of whether the government sought and obtained a conviction for all that conduct. The concept is enshrined in U.S.S.G. Section 1B1.3, which provides that a judge may consider a wide range of "relevant conduct" in calculating a defendant's advisory guidelines range.