Copyright (c) 2009 Columbia Human Rights Law Review
Columbia Human Rights Law Review
NOTE: NOT GUILTY? GO TO JAIL. THE UNCONSTITUTIONALITY OF ACQUITTED-CONDUCT SENTENCING
COLUMBIA HUMAN RIGHTS LAW REVIEW
41 Colum. Human Rights L. Rev. 235
Mark T. Doerr*
The landmark Supreme Court decision in United States v. Booker 1 rendered the mandatory and controversial Federal Sentencing Guidelines ("the Guidelines") merely advisory. 2 In so deciding, the Supreme Court created uncertainty that rippled through the federal circuit and district courts, resulting in inconsistencies regarding several elements of the now advisory Guidelines. 3
Perhaps the most contentious controversy unleashed by the Booker decision is the constitutionality of a judge's consideration of acquitted conduct in enhanced sentencing ("acquitted-conduct sentencing"). 4 Enhanced sentencing 5 alone is a somewhat controversial practice, and the use of acquitted conduct exacerbates that controversy. 6 Enhanced sentencing serves important purposes, however. For example, it empowers judges to more harshly punish criminals who have clearly earned it. Yet, the benefits of enhanced sentencing, especially acquitted-conduct sentencing, cannot justify its unfettered use during the sentencing phase of criminal trials. Enhanced sentencing, and acquitted-conduct sentencing in particular, directly affects the one part of a sentence the defendant cares about most - how much time he will have to spend behind bars. This demands that courts and legislatures tread lightly when dealing with enhanced sentences, and any enhanced sentence must be moored in solid, constitutionally permissible grounds.
An unfortunate consequence of the Booker decision is that above-Guidelines-range sentences are imposed at a rate double that of the rate before Booker. 7 This strongly suggests that judges have struggled with the implications of the advisory nature of the post-Booker Guidelines ...
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