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Supreme Court Mulls Taking Up Terms Based On 'Acquitted Conduct'

A jury convicted Dayonta McClinton of robbing a CVS pharmacy but acquitted him of murder. A judge gave McClinton an extra 13 years in prison for the killing. Many defendants get additional prison time for crimes that juries found they didn’t commit. The Supreme Court is again being asked to put an end to the practice. It’s possible that the new justice, former federal public defender Ketanji Brown Jackson, could cast a pivotal vote, reports the Associated Press. McClinton’s case and three similar ones are scheduled to be discussed when the justices meet in private next week. Sentencing a defendant for “acquitted conduct” has gone on for years, based on a 1990s. Supreme Court decision. 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 dissent from the court’s decision to reject an appeal from defendants who received longer prison terms for conspiring to distribute cocaine after jurors acquitted them of conspiracy charges.


Two newer justices, Neil Gorsuch and Brett Kavanaugh, 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 could provide a fourth vote along with Thomas to take up the issue, said Douglas Berman, an expert on sentencing 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 asking the court to take up McClinton’s case. McClinton, then 17, was part of an armed group that robbed a CVS pharmacy in Indianapolis in 2015 in search of prescription medicines, including opioids. 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.

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