Imagine an individual who is convicted of fraudulently obtaining $5,000 but simultaneously acquitted by a jury of conspiring to fraudulently obtain $1 million. Yet at sentencing, the court bases its sentence of the defendant not on the $5,000 fraud of which he was convicted but on the $1 million conspiracy for which the judge finds him culpable. Under the federal sentencing guidelines, the dollar amount of a fraud or theft is a primary determinant of the recommended sentence. Although the guidelines sentence is only advisory, the judge is required to calculate and consider it; in this circumstance, a defendant’s sentence could potentially increase from probation to three years. Yet even though the court has in some way contradicted the jury’s verdict, such a result is in many cases allowed under current law. Besides seeming unfair, the ability of prosecutors to use acquitted conduct at sentence may allow them to bring more numerous charges against defendants under the assumption that even if the jury acquits the defendant on the majority of charges that same conduct will still be available at sentencing.

The justification for a court’s use of acquitted conduct at sentencing is that under current law a judge may find facts by a preponderance of evidence at sentencing, a lower standard than the beyond a reasonable doubt standard the jury uses. Yet a number of judges have expressed concern about the potential violation of the Sixth Amendment Right to Jury Trial implicated by these facts. Justices Scalia, Thomas, and Ginsburg raised concerns regarding similar issues in a dissent from a denial of a cert petition. Donald Trump’s recent Supreme Court nominee, Judge Brett Kavanaugh, has also indicated his sympathy to the idea that a court sentencing a defendant on the basis of acquitted conduct seems unjust. In one case, he echoed and endorsed a defendant’s words that the defendant “just fe[lt] as though, you know, that that’s not right. That I should get punished for something that the jury and my peers, they found me not guilty.” Judge Kavanaugh has also written that even though judges may sentence on the basis of acquitted conduct, they have the discretion to effectively ignore that conduct and impose a lower sentence.

Judge Kavanaugh’s writing on this topic, however, has always noted that binding precedent from the Supreme Court and his own D.C. Circuit permits sentencing on the basis of acquitted conduct. Should Judge Kavanaugh be elevated to the Supreme Court, he would be in a position to do something about that in conjunction with other Justices who have expressed similar concerns.