CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 3, 2020

Outlaw on Using Acquitted Conduct at Sentencing

Lucius Outlaw III (Howard University School of Law) has posted Giving an Acquittal Its Due: Why a Quartet of Sixth Amendment Cases Means the End of United States v. Watts and Acquitted Conduct Sentencing (5 U. Denv. Crim. L. Rev. 173) on SSRN. Here is the abstract:
In United States v. Watts, the Supreme Court established that a sentencing judge may consider acquitted conduct otherwise proven using the preponderance of evidence standard to determine a defendant's sentence. It is a decision that undermines the judicial system's core principle that a defendant is presumed innocent unless convicted by a jury using the beyond a reasonable doubt standard.

The holding and reasoning of the Watts decision is called into question by a quartet of Supreme Court sentencing-related decisions that post-date Watts. Taken together -- Apprendi v. New Jersey, Blakely v. Washington, United States v. Booker, and Alleyne v. United States -- this quartet firmly establishes that the a judge's sentencing power begins and ends with the jury's determination using the reasonable doubt standard, and that Watts today cannot survive constitutional scrutiny.

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