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.