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High Court Defers On 'Acquitted Conduct' Awaiting Sentencing Panel

The U.S. Supreme Court for now will not weigh in on the legality of judges increasing prison sentences for criminal defendants based on charges for which they were acquitted, a practice that critics say violates basic constitutional rights. The justices turned away appeals in cases that would have given them an opportunity to prohibit the consideration of "acquitted conduct" in sentencing decisions, Reuters reports. Four justices on Friday said the issue raised important questions but signaled they would await pending action by the U.S. Sentencing Commission before addressing the issue. The commission has proposed amending federal sentencing guidelines to prohibit judges from considering a defendant's acquitted conduct with only narrow exceptions. The commission has not voted on the measure, which is opposed by the U.S. Justice Department.


Justice Sonia Sotomayor said that "this court may need to take up the constitutional issues presented" if the commission does not act on it soon. Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett made a similar statement. At issue is whether the practice violates the U.S. Constitution's Fifth Amendment due process protections and Sixth Amendment right to a trial by jury. Many defendants have asked the justices to revisit a 1997 Supreme Court ruling that said a jury's verdict of acquittal does not prevent a sentencing judge from considering conduct underlying an acquitted charge. Juries must determine whether a charge has been proved beyond a reasonable doubt - the burden of proof in criminal cases - in order to convict a defendant. Judges during sentencing can consider the facts underlying acquitted charges if they were proved by a preponderance of evidence at trial, a lower burden of proof matching that used in civil cases. The National Association of Criminal Defense Lawyers says the practice undermines the role of the jury in criminal trials and violates the due process rights of defendants.

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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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