Striking “the Average Person as Quite Strange”: Why the Supreme Court Should Not Heed Justice Alito’s Concerns if It Chooses to Take Up the Issue of Acquitted-Conduct Sentencing

by Lindsay Campbell*

The Supreme Court recently denied certiorari in McClinton v. United States—a case which would have required the Court to consider whether the use of acquitted conduct in sentencing violates criminal defendants’ rights under the Constitution. This piece considers and responds to Justice Alito’s concurrence in the Court’s denial, arguing that Justice Alito misconstrues the constitutional issues presented by Petitioner’s claims. Specifically, he inaccurately conflates acquitted conduct and uncharged conduct; he overemphasizes the role stare decisis would play in the Court’s ruling; and he expresses concerns over the workability of criminal sentencing absent the use of acquitted conduct—concerns which only serve to highlight the unconstitutionality of the United States’ present sentencing scheme. If the Supreme Court were to take up this issue, Justice Alito’s considerations should not bar the Court from finding that the use of acquitted conduct in sentencing violates criminal defendants’ right to due process under the Fifth Amendment and their right to a trial by jury under the Sixth Amendment.

On June 30, 2023, the Supreme Court denied certiorari in McClinton v. United States¹—a case which would have required the Court to consider whether relying on acquitted conduct in sentencing violates criminal defendants’ rights under the Fifth and Sixth Amendments of the U.S. Constitution.²

The petitioner in the case, Mr. Dayonta McClinton, is a young man who had been convicted of an armed robbery.³ At the conclusion of his trial, the jury found beyond a reasonable doubt that he had stolen $68 worth of goods from a CVS pharmacy.⁴ The jury also acquitted Mr. McClinton of all charges related to the death of his close friend, Mr. Malik Perry.⁵ Mr. Perry had been shot at close-range, in the back of the head, after the $68 CVS robbery had concluded.⁶ The State has never proven—beyond a reasonable doubt—who shot Mr. Perry.⁷ However, when Mr. McClinton proceeded to sentencing on his armed robbery conviction, “something happened that might strike the average person as quite strange.”⁸ A singular judge determined by a preponderance of the evidence that Mr. McClinton had caused his friend’s death.⁹ This finding was largely based on the testimony of Mr. McClinton’s co-participants in the robbery, who testified against Mr. McClinton in exchange for reduced sentences.¹⁰ Based on this factual finding, Mr. McClinton’s suggested sentencing range under the U.S. Sentencing Guidelines nearly tripled—jumping from 57–71 months to 228 months. In other words, Mr. McClinton now stands to serve an additional thirteen years of incarceration for a crime that he was expressly acquitted of.¹¹ On June 30, 2023, the Supreme Court offered him no relief.¹²

In denying Mr. McClinton’s petition for a writ of certiorari, the Court stated that its decision “should not be misinterpreted” as a judgment on the probable merits of his claims.¹³ Citing the U.S. Sentencing Commission’s intention to “resolve questions around acquitted-conduct sentencing in the coming year,” the Court noted that it may one day decide “to take up the constitutional issues presented” by the Petitioner’s claims, absent prompt decision-making on the part of the Commission.¹⁴ Justice Sotomayor, drafting the statement on the part of the Court, seemed sympathetic to Mr. McClinton’s circumstances.¹⁵ Justice Alito, concurring in the Court’s denial, expressed more skepticism as to the unconstitutionality of the practice than his fellow Justices.¹⁶

Justice Alito’s concerns should be addressed—as they in large part misconstrue the constitutional issues presented by Mr. McClinton’s claims. If the Supreme Court were to finally address acquitted conduct sentencing—which will remain in use in state courts regardless of any policy decisions made by the U.S. Sentencing Commission¹⁷—Justice Alito’s objections should not deter the Court from finding that the use of acquitted conduct in sentencing violates the Fifth and Sixth Amendments.

The Fifth Amendment’s Due Process Clause requires that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law,”¹⁸ and the Sixth Amendment guarantees all individuals accused of a crime the right to an “impartial jury of the State.”¹⁹ The reasonable doubt standard is crucial to ensuring due process, insofar as the magnitude of a defendant’s liberty interest is recognized and protected through a high “standard[ ] of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.”²⁰ Not only should this standard not be diluted, but the right to a trial by jury encapsulates a deep reluctance “to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.”²¹ By serving as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge,” the right to a jury was enshrined in the U.S. Constitution to ensure citizens’ protection against government oppression.²²

In light of these constitutional mandates, there are three major flaws in Justice Alito’s reasoning. First, in comparing acquitted conduct to “uncharged” conduct,²³ Justice Alito fails to grasp the specific qualities of acquitted conduct that render its consideration at sentencing unconstitutional. In particular, he fails to recognize that acquitted conduct is necessarily aggravating whereas uncharged conduct may not be. Second, Justice Alito overstates the impact of stare decisis on Mr. McClinton’s claims.²⁴ While acquitted conduct sentencing may not violate the double-jeopardy clause of the Fifth Amendment, Mr. McClinton’s case raises distinct and unanswered Fifth and Sixth Amendment questions. Finally, Justice Alito’s concerns about the workability of sentencing absent the use of acquitted conduct²⁵ demonstrate the ways in which the reasonable doubt standard has been diluted by the United States’ current sentencing regime. To continue to rely on acquitted conduct in sentencing would represent an acquiescence to that dilution.

First, Justice Alito contends “there is no relevant difference . . . between acquitted conduct and uncharged conduct.”²⁶ While he mainly makes this point in an effort to undermine Justice Sotomayor’s historical arguments,²⁷ it also speaks to a possible line-drawing issue: why can uncharged conduct potentially be considered at sentencing, while acquitted conduct cannot? Though relying on certain forms of “uncharged conduct” at sentencing may still present deep constitutional issues, particularly if such conduct could constitute a crime, acquitted conduct is—definitionally—quite distinct. Specifically, acquitted conduct has two key characteristics that render its consideration at sentencing automatically unconstitutional. First, acquitted conduct, as opposed to uncharged conduct, is necessarily aggravating. While certain forms of “uncharged” conduct, like a defendant’s charitable work or their history of mental disability, may be mitigating in the sentencing analysis, the consideration of acquitted conduct, which is necessarily criminal, can only serve to increase a defendant’s sentence. Therefore, acquitted conduct will always raise a Fifth Amendment due process concern, since its consideration necessarily risks a deprivation of liberty.²⁸ Second, acquitted conduct is a priori defined by the substantive criminal law. While all relevant, uncharged conduct may not necessarily raise Sixth Amendment concerns,²⁹ particularly if such conduct is not technically criminalized, acquitted conduct is—by definition—conduct that is codified and criminalized. This means, prior to being punished for such conduct, defendants must be able to meaningfully exercise their Sixth Amendment right.

Therefore, while there may be a host of constitutional issues raised by the consideration of uncharged conduct at sentencing, there is no difficult line-drawing issue presented by Mr. McClinton’s claims. Consequently, a finding for Mr. McClinton would not broadly undermine the flexible, defendant-specific sentencing scheme envisioned by the U.S. Sentencing Commission and codified in 18 U.S.C. § 3661.³⁰ Consideration of uncharged conduct, but not acquitted conduct, would still allow “sufficient judicial flexibility to take into account relevant aggravating and mitigating factors,”³¹ without trampling on defendants’ Fifth and Sixth Amendment rights.

Second, Justice Alito misrepresents the precedential value of United States v. Watts.³² Claiming to be concerned about stare decisis, Justice Alito characterizes the Watts holding as “broad,”³³ pointing to the Court’s statement that there is no “prohibition against considering certain types of evidence at sentencing,” including “uncharged or acquitted conduct.”³⁴ In making this claim, Justice Alito cites to United States v. Booker.³⁵ This is troubling because the Court in Booker took great pains to narrow and clarify the Watts holding.³⁶ Specifically, they made clear that Watts only considered whether the use of acquitted conduct in sentencing violated the Fifth Amendment’s Double Jeopardy Clause.³⁷ Consequently, any other Fifth and Sixth Amendment issues were “simply . . . not presented.”³⁸ Not only would stare decisis mandate that Justice Alito respect the Booker Court’s clarification; it would also require Justice Alito to grapple with Watts’s status as a summary disposition. As the Court noted in Connecticut v. Doehr, “[a] summary disposition does not enjoy the full precedential value of a case argued on the merits.”³⁹

Finally, Justice Alito’s “workability” concerns highlight one of the major issues with the United States’ present sentencing scheme: the functional dilution of the reasonable doubt standard. First, Justice Alito laments that it would “frequently be ‘impossible to know exactly why a jury found a defendant not guilty on a certain charge.’”⁴⁰ Additionally, he questions whether a sentencing judge may consider the factual allegations underlying a “dead-locked count”—in other words, a count where the jury neither convicted nor acquitted the defendant.⁴¹

Both of these concerns imagine a situation in which, having proceeded to sentencing, a criminal defendant has been convicted of at least one charge. However, a conviction on one charge should not open the door for the State to punish defendants based on additional charges that could not be proven beyond a reasonable doubt. To clarify, consider a circumstance in which a defendant was charged with one crime and had been acquitted of said crime. There would be no lamentation on the part of Justice Alito that it is “impossible” to know why the jury found the defendant not guilty. The jury’s acquittal, in and of itself, would end the matter. Similarly, a “dead-locked” count—when it is the only count with which a defendant was charged—results in a mistrial. Though the prosecution could try their case again, they would still be held to the same reasonable doubt standard.

In comparison, Justice Alito’s “workability” concerns actually reflect a perverse incentive under the United States’ current sentencing scheme: prosecutors may try to “secure conviction on a more easily proved offense” before persuading “the sentencing judge of [the defendant’s] guilt” on more difficult-to-prove charges, without ever needing to meet the reasonable doubt standard.⁴² In Blakely v. Washington, the Court expressly criticized this type of incentive structure.⁴³ Moving to sentencing based on more easily proved offenses could produce “absurd result[s],” such as the possibility of sentencing “a man for committing [a] murder even if the jury convicted him only of illegally possessing the firearm used to commit it—or of making an illegal lane change while fleeing the death scene.”⁴⁴ Moreover, this dilution of the reasonable doubt standard not only incentivizes over-charging, but it has the additional impact of forcing defendants to effectively defend themselves on two legal standards at once.⁴⁵ First, they must defend themselves at trial, where they have no burden whatsoever. However, they risk the possibility of proceeding to sentencing in front of the same judge. If that is the case, they must then convincingly defend themselves on an entirely new standard—preponderance of the evidence—which shifts some of the burden upon them.⁴⁶

In conclusion, if and when the Supreme Court decides to consider the use of acquitted conduct in sentencing, Justice Alito’s concerns should not stop the Court from finding that the practice violates the Fifth and Sixth Amendments to the U.S. Constitution.

* Lindsay Campbell is a J.D. Candidate (2024) at New York University School of Law. This Contribution was inspired by her participation in the 2023 Herbert Wechsler National Criminal Law Moot Court Competition, which asked competitors to consider the Fifth and Sixth Amendment issues raised by the use of acquitted conduct in sentencing.

1. See generally McClinton v. United States, 143 S. Ct. 2400 (2023).

2. Petition for Writ of Certiorari at I, McClinton, 143 S. Ct. 2400 (2023) (No. 21-1557).

3. Id. at 7.

4. Id. at 5­, 7.

5. Id.

6. Id. at 5–­6.

7. Id. at 2­–10.

8. McClinton, 143 S. Ct. at 2401 (Sotomayor, J., concurring).

9. Petition for Writ of Certiorari, supra note 2, at 8 (No. 21-1557).

10. Id. at 6.

11. Id. at 4.

12. McClinton, 143 S. Ct. 2400.

13. Id. at 2403 (Sotomayor, J., concurring).

14. Id.

15. See generally id. (describing the process through which McClinton’s sentence was enhanced as “quite strange”).

16. See id. at 2403–04 (Alito, J., concurring).

17. See id. at 2403 (Alito, J., concurring).

18. U.S. Const. amend. V.

19. U.S. Const. amend. VI.

20. See Addington v. Texas, 441 U.S. 418, 423 (1979).

21. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

22. Id.

23. McClinton, 143 S. Ct. at 2404 n.1 (Alito, J., concurring).

24. See id. at 2405.

25. See id.

26. Id. at 2404 n.1.

27. See id. (arguing that the “historical evidence supporting consideration of uncharged conduct is highly relevant to the consideration of acquitted conduct”).

28. See U.S. Const. amend. V.

29. See, e.g., Jones v. United States, 526 U.S. 227, 248 (1999) (“It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution.”).

30. See U.S. Sent’g Guidelines Manual ch. 1, pt. A (U.S. Sent’g Comm’n 2021).

31. U.S. Sent’g Comm’n, An Overview of the United States Sentencing Commission 1, https://www.ussc.gov/sites/default/files/pdf/about/overview/USSC_Overview.pdf.

32. 519 U.S. 148 (1997) (per curiam).

33. McClinton, 143 S. Ct. at 2405 (Alito, J., concurring).

34. Id. (quoting Watts, 519 U.S. at 152–55).

35. 543 U.S. 220, 251 (2005).

36. See id. at 240.

37. See id. (“In Watts . . . we held that the Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.”).

38. Id.

39. 501 U.S. 1, 12 n.4 (1991).

40. McClinton, 143 S. Ct. at 2405 (Alito, J., concurring) (quoting Watts, 519 U.S. at 155).

41. Id.

42. Brief for Nat’l Assoc. of Federal Defenders et al. as Amici Curiae Supporting Petitioner at 8, McClinton, 143 S. Ct. 2400 (No. 21-1557).

43. See Blakely v. Washington, 542 U.S. 296, 306 (2004).

44. Id.

45. See United States v. Faust, 456 F.3d 1342, 1353 (11th Cir. 2006) (Barkett, J., concurring) (“[T]he most pernicious effect of sentencing on the basis of acquitted conduct . . . is its implicit and often hopeless demand that, in order to avoid punishment for charged conduct, criminal defendants must prove their innocence under two drastically different standards at once.”).

46. See id.