At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than not committed the offense. Courts have relied on United States v. Watts and United States v. Booker to support their continued use of acquitted conduct at sentencing. This Article argues that Watts is not viable and that the merits majority opinion in Booker, as opposed to the remedial majority opinion, is most consistent with the Court’s precedent established by Apprendi v. New Jersey and its progeny. This Article concludes that use of acquitted conduct violates the Sixth Amendment right to a jury trial. In addition to offering a constitutional basis, this Article examines the following policy grounds for prohibiting the use of acquitted conduct: the role served by juries and benefits they provide, the dramatic impact of sentencing enhancements based on acquitted conduct, the potential for misuse by prosecutors, and the end of actual or legal innocence. Finally, this Article suggests that United States v. Gall and United States v. Kimbrough have restored judicial discretion in sentencing, providing judges with the independence to reject the use of acquitted conduct on the grounds that it contravenes the purposes of sentencing set forth in 18 U.S.C. § 3553(a) to promote respect for the law, afford deterrence, and avoid unwarranted disparity.
Eang L. Ngov, Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing, 76 Tenn. L. Rev. 235 (2009)