The use of a acquitted conduct at sentencing actually strikes me as a legally tricky issue that raises intriguing questions.
Why is it (Fed) constitutionally okay? Because the burdens of proof are different at trial than sentencing, and “acquitted” doesn’t mean “innocent.”
Why is it (Fed) constitutionally okay? Because the burdens of proof are different at trial than sentencing, and “acquitted” doesn’t mean “innocent.”
https://twitter.com/larabazelon/status/1442851600243077129
For guilt/innocence, state gotta prove everything beyond a reasonable doubt. But for sentencing, the (constitutional) rules mostly go away (30,000-tweet thread on Blakely omitted here).
Totally fine to, say, sentence based on something found by a preponderance.
So: “acquitted.”
Totally fine to, say, sentence based on something found by a preponderance.
So: “acquitted.”
“Acquitted” doesn’t = “innocent.” It means “not proven beyond a reasonable doubt.”
Over course of trial, judge may come to think ~60% likely def is guilty. That’s not BRD, but it is preponderance.
So okay for sentencing, given our rules.
Over course of trial, judge may come to think ~60% likely def is guilty. That’s not BRD, but it is preponderance.
So okay for sentencing, given our rules.
So what makes acquitted conduct worse than all the other stuff judges look at without criticism?
In fact, acquitted conduct may be the BEST VETTED compared to much stuff that may appear in a presentencing report.
If acquitted conduct bother us, so should A LOT of OTHER stuff.
In fact, acquitted conduct may be the BEST VETTED compared to much stuff that may appear in a presentencing report.
If acquitted conduct bother us, so should A LOT of OTHER stuff.
Conversely, if we are basically cool w how information makes it into sentencing—where our thoughts abt error costs differ from the guilt phase—then the problems w acquitted conduct are harder to see.
It’s … an intriguing issue.
It’s … an intriguing issue.
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