Civil Liberties

This Teen Was Acquitted of Killing His Accomplice. He Was Punished for It Anyway.

Seventeen retired federal judges, appointed by both Republicans and Democrats, filed a brief supporting his appeal.


In 2015, when he was 17, Dayonta McClinton and five accomplices robbed a CVS pharmacy in Indiana at gunpoint. Federal prosecutors also alleged that McClinton shot and killed one of his accomplices, Malik Perry, during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy and brandishing a gun during that crime but acquitted him of robbing and killing Perry.

U.S. District Judge Tanya Walton Pratt nevertheless granted the government's request that McClinton serve time for causing Perry's death. Taking into account his prior criminal record, the sentencing guidelines recommended a prison term of 57 to 71 months for the convictions. McClinton instead received a sentence of 228 months—19 years. Pratt said Perry's murder was "the driving force in this sentence."

The case vividly illustrates how defendants can be punished for crimes even when a jury finds them not guilty of those offenses. A conviction requires the government to prove its case beyond a reasonable doubt. But federal judges can sentence defendants for acquitted conduct if they determine it is more likely than not that they committed additional crimes.

Critics say that practice violates the Fifth Amendment's due process guarantee and the Sixth Amendment right to a jury trial. The Supreme Court could resolve those questions if it agrees to hear Dayonta McClinton v. United States.

Despite the Court's conservative bent, it may be receptive to McClinton's appeal. When the Court declined to hear a similar appeal in 2014, Justice Clarence Thomas joined a dissent in which Justice Antonin Scalia urged his colleagues "to put an end to the unbroken string of cases disregarding the Sixth Amendment." In a partial 2018 dissent as an appeals court judge, Justice Brett Kavanaugh said "there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness."

The Americans for Prosperity Foundation, a libertarian-conservative group that filed a brief supporting McClinton, notes several other defendants who were sentenced based on acquitted conduct. They include Erick Osby, who was convicted of two drug charges but sentenced as if he had been convicted of seven drug and gun charges, and Roger White, who was acquitted of firearm-related charges yet received an additional 14 years for them.

Seventeen retired federal judges, appointed by both Republicans and Democrats, also filed a brief supporting McClinton's appeal. They argue that the "simple and straightforward solution to this problem" is to rule that "no alleged conduct upon which a jury has acquitted a defendant should be used to enhance the defendant's penalty for any crime."