Newspaper Page Text
4A Thursday, December 29, 2022
The Times, Gainesville, Georgia | gainesvilletimes.com
NATION
Supreme Court asked to bar punishment for acquitted conduct
ALEX BRANDON I Associated Press
Supreme Court nominee Ketanji Brown Jackson testifies
Mar. 23, during her Senate Judiciary Committee confirmation
hearing on Capitol Hill in Washington.
BY MARK SHERMAN
Associated Press
WASHINGTON — A
jury convicted Dayonta
McClinton of robbing a
CVS pharmacy but acquit
ted him of murder. A judge
gave McClinton an extra 13
years in prison for the kill
ing anyway.
In courtrooms across
America, defendants get
additional prison time for
crimes that juries found
they didn’t commit.
The Supreme Court is
being asked, again, to put
an end to the practice. It’s
possible that the newest
member of the court and
a former federal public
defender, Justice Ketanji
Brown Jackson, could hold
a pivotal vote.
McClinton’s case and
three others just like it are
scheduled to be discussed
when the justices next meet
in private on Jan. 6.
Sentencing a defendant
for what’s called “acquitted
conduct” has gone on for
years, based on a Supreme
Court decision from the
late 1990s. And the justices
have turned down numer
ous appeals asking them to
declare that the Constitution
forbids it.
The closest the court
came to taking up the issue
was in 2014, when Justices
Antonin Scalia, Clarence
Thomas and Ruth Bader
Ginsburg provided three of
the four votes necessary to
hear an appeal.
“This has gone on long
enough, ” Scalia wrote in dis
sent from the court’s deci
sion to reject an appeal from
defendants who received
longer prison terms for con
spiring to distribute cocaine
after jurors acquitted them
of conspiracy charges.
Scalia and Ginsburg have
since died, and Thomas
remains on the court. But
two other justices, Neil
Gorsuch and Brett Kavana-
ugh, have voiced concerns
while serving 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.
Jackson, who also previ
ously served on the U.S. Sen
tencing Commission, could
provide a fourth vote to take
up the issue, said Douglas
Berman, an expert on sen
tencing at the Ohio State
University law school.
“She is someone who we’d
have good reason to believe
would be troubled by the
continued use of acquitted
conduct,” said Berman, who
filed a brief calling on the
court to take up McClinton’s
case.
Jackson replaced Jus
tice Stephen Breyer, who
generally favored giving
judges discretion in impos
ing prison terms. Reining in
the use of acquitted conduct
in sentencing would restrict
judicial discretion.
McClinton, then 17, was
part of an armed group that
robbed a CVS pharmacy
in Indianapolis in 2015 in
search of prescription med
icines, including opioids.
The take was meager, about
$68 worth of drugs, McClin
ton’s lawyers said in court
papers. After one mem
ber of the group refused to
share the proceeds, he was
fatally shot in the back of
the head at close range.
The reputed leader and
other members of the group
testified against McClinton
at trial, as part of their bid
for reduced prison terms,
McClinton’s lawyers wrote.
Even with the testimony,
jurors acquitted McClinton
of the most serious charges
against him. He should have
faced six years in prison, at
most.
Instead, the trial judge
gave McClinton 19 years,
finding that it was more
likely than not that McClin
ton was responsible for the
killing. The legal standard
in a jury trial is higher,
proof beyond a reasonable
doubt.
Upholding McClinton’s
prison term, Judge liana
Rovner wrote for a unani
mous three-judge panel of
the Chicago-based 7th U.S.
Circuit Court of Appeals
that lower-court judges are
bound by a 1997 Supreme
Court ruling that “a jury’s
verdict of acquittal does
not prevent the sentencing
court from considering con
duct underlying the acquit
ted charge, so long as that
conduct has been proved
by a preponderance of the
evidence.”
But Rovner noted that a
growing number of federal
judges “have questioned the
fairness and constitutional
ity of allowing courts to fac
tor acquitted conduct into
sentencing calculations.”
Seventeen former fed
eral judges also signed
on to a brief in support of
McClinton.
McClinton’s lawyers
argue that the high court’s
intervention is past due.
“Unless this Court resolves
this issue, tens of thousands
of criminal defendants will
continue to be sentenced
using sentencing prac
tices that are impossible to
square with the Constitu
tion,” they wrote.
The Justice Department
urged the court to reject
the appeal, as it did in many
similar cases in the past.
There’s no certainty
about what the justices will
do. Berman, the sentencing
expert, said there are rea
sons the court could take a
pass again, including a pref
erence for Congress to deal
with the issue by legislation
or for the Sentencing Com
mission to address it.
Neither has, over more
than two decades, though
the House in March passed
legislation prohibiting pun
ishment of acquitted con
duct. The Senate has not
taken any action.
Another reason for cau
tion, Berman said, is that
some justices might feel
that they would craft at
best a rough rule with the
potential for unintended
consequences that include
restricting judicial discre
tion more than they want.
Jackson also might have
to weigh whether this is a
topic she wants to take on in
her first term, already filled
with consequential cases on
race, elections and the lat
est dispute involving people
with religious objections to
same-sex marriage.
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