Not Guilty but Punished Anyway

When Willonte Yates, Malik Perry, Dayonta McClinton, and three other young men arrived at a CVS on College Avenue in Indianapolis on a Tuesday night in October 2015, they were there to rob the pharmacy at gunpoint. It did not go as planned.

McClinton helped guard customers. Yates, who dubbed himself the "mastermind" of a string of similar robberies, led the charge with Perry. But their target, the safe, was equipped with a timed lock, meaning they would not be able to access the drugs inside for several minutes. Each passing moment meant the police could be drawing closer. So the group made off with a small bottle of hydrocodone—a sacrificial offering set aside by the pharmacy for situations like this one—along with kidney medication and cough syrup containing codeine.

A getaway driver brought the group to a residential area. Perry, dismayed at how little they had to show for their efforts, allegedly declined to share the paltry proceeds. He exited the car.

Perry would not get very far. Someone followed him and shot him in the back of the head at close range. It is still unclear who that was.

The government zeroed in on McClinton, who was 17 at the time but was tried as an adult. At his trial in September 2019, prosecution witnesses testified that he and Perry were "like brothers…real close." The witnesses said McClinton was Perry's "best friend." The same could not be said for Yates, the robbery ringleader: His girlfriend was "two-timing" him with Perry, according to testimony from Clevon Williams, who had participated in other robberies with Yates. But Yates, who was cooperating with prosecutors, had implicated McClinton. So had Williams, after spending a year housed in the same detention facility as Yates.

A jury didn't believe them. It convicted McClinton for his role in the armed robbery but found him not guilty of killing Perry.

Then a judge sentenced McClinton for the murder anyway.

"The driving force in this sentence is not what he's been convicted of, actually," U.S. District Judge Tanya Walton Pratt said during McClinton's sentencing at the federal courthouse in Indianapolis. The main factor in McClinton's punishment, she said, was Perry's murder, even though a jury had explicitly considered and rejected the charge that McClinton had caused Perry's death. Based on his convictions alone, federal sentencing guidelines would recommend that Pratt give McClinton a prison sentence of somewhere from 57 to 71 months, or about five to six years. Instead she sentenced him to 19 years.

That result likely offends most people's understanding of how the U.S. criminal justice system is supposed to operate. When a defendant hears "not guilty," he can expect to avoid punishment for that offense, or so we're told. But the reality is that criminal defendants can be sentenced based on "acquitted conduct," meaning charges that a jury rejected.

Although the U.S. Supreme Court approved acquitted-conduct sentencing in 1997, it has flown almost entirely under the public's radar. But in April 2024, amid pressure from various lawyers, judges, and advocates, the U.S. Sentencing Commission, the judicial-branch agency that writes the federal sentencing guidelines, unanimously voted to limit the practice. It remains to be seen how much effect that decision will have.

A cohort of left-leaning legal scholars, constitutional conservatives, and libertarian think-tankers is watching. In a time when political tribalism defines many aspects of American life, that transpartisan alliance has at least one thing in common: a desire to eliminate outcomes like the one Pratt imposed on McClinton, who was partially vindicated at trial but punished as if he had been convicted on all counts.

'Facts That the Jury Necessarily Rejected'

State and federal judges have sentenced defendants based on acquitted conduct for many decades. But the Supreme Court's blessing of that practice can be traced to half a kilogram of crack cocaine that Sacramento police found in a kitchen cabinet and two guns they discovered in a bedroom closet.

Vernon L. Watts admitted the drugs and guns were his. In December 1993, he was convicted of possessing crack with the intent to distribute it. The jury did not agree beyond a reasonable doubt, however, that he had used a firearm in furtherance of that offense. The federal judge who sentenced Watts nevertheless took the gun charge into account when he imposed a prison term of 262 months, or nearly 22 years, which was significantly longer than the sentence he probably would have received for the crack offense alone.

Watts appealed that sentence—and won. "A district court sentencing a criminal defendant for the offense of conviction cannot reconsider facts that the jury necessarily rejected by its acquittal of the defendant on another count," said the U.S. Court of Appeals for the 9th Circuit. The court ordered that Watts be resentenced.

About five months later, the same court heard a similar appeal. A federal jury in Honolulu had convicted Cheryl Ann Putra of selling an ounce of cocaine but acquitted her of another drug sale, which the government alleged had taken place the next day. Again, the judge sentenced her as if she had been found guilty of everything. Again, the 9th Circuit reversed.

Both cases attracted the Supreme Court's attention. On January 6, 1997, without hearing oral arguments, the Court published its 7–2 decision in United States v. Watts, reversing the 9th Circuit's rulings and officially greenlighting what some judges had long been doing. When sentencing defendants, the majority said, the government need not be deterred by an acquittal if the defendant received a split verdict—i.e., if he was convicted of at least one charge.

"The Court of Appeals failed to appreciate the significance of the different standards of proof that govern at trial and sentencing," the majority said in an unsigned opinion. At trial, the jury is instructed to consider whether a given charge has been proven "beyond a reasonable doubt." But at sentencing, the justices said, a judge can apply the much less demanding "preponderance of the evidence" standard. In other words, judges can override acquittals if they think it more likely than not that the defendants are guilty.

The Court's decision was based on "what an acquittal [actually] means,"says Bill Otis, a former federal prosecutor who supports mandatory minimum sentencing laws and other tough-on-crime policies. "An acquittal doesn't mean the jury has concluded the defendant didn't do it….What it means is only that the jury has failed to find unanimously and beyond a reasonable doubt that the defendant committed every level of the offense." In Otis' view, which seven justices endorsed in Watts, acquittals are not binding, meaning judges have discretion to disregard them based on a lower standard of proof.

Justices John Paul Stevens and Anthony Kennedy wrote separate dissents in Watts. Kennedy's opinion was concise and technical, emphasizing that the case should have received a full briefing. But Stevens took special umbrage at Putra's plight, calling the decision "repugnant" to longstanding constitutional jurisprudence.

The right to a trial by jury is enshrined in both the Sixth Amendment and Article III of the U.S. Constitution. Critics of acquitted-conduct sentencing say the practice is irreconcilable with that constitutional guarantee and with the Fifth Amendment's assurance of due process, because it permits the government to renege on those promises if it doesn't like the result of a trial. "Our Founders fought a revolution, and we enshrined in our Constitution this commitment to jury trial rights that was very much based in the idea that the people, in the form of the jury, serve as a check on the government," says sentencing expert Douglas Berman, a professor at the Ohio State University's Moritz College of Law.

It is hard to say exactly how many people are sentenced each year based on acquitted conduct. In FY 2021, according to data from the U.S. Sentencing Commission, 157 federal defendants received a split verdict, meaning they were acquitted of at least one charge and thus were vulnerable to acquitted-conduct sentencing.

The main reason the number is so small is that nearly all federal convictions—about 97 percent in FY 2023—are based on guilty pleas rather than trials. That situation is largely due to the fact that prosecutors can coerce guilty pleas by threatening to file additional charges against defendants who insist on a trial, which can dramatically increase the penalties they face. Acquitted-conduct sentencing raises the pressure to plead guilty. A defendant weighing a plea offer knows he will go free if a jury acquits him of all charges. But if he is acquitted of most charges and found guilty of just one, he could be sentenced as if the jury convicted him of everything.

"What makes acquitted-conduct [sentencing] so pernicious," Berman says, "is that a competent defense attorney has to sit down with his client and say, 'OK. Are you guilty of any of these 10 things you were charged with? We could go to trial, and we could prevail and get you acquitted on all the other nine. But if you get convicted on this one…you're not only going to be sentenced on that. You're going to get triple-hammered.'"

Why triple? On average, according to the National Association of Criminal Defense Lawyers, trial sentences in federal court are "roughly three times higher than plea sentences for the same crime."

Despite its implications, the Supreme Court's decision in Watts attracted little attention at the time. But acquitted-conduct cases began piling up in federal courts.

In April 2002, Roger Clayton White waited in a car outside Security Bank and Trust Company in Maysville, Kentucky, while his brother and his brother's girlfriend robbed the bank. During his 2003 trial, White, who did not have a criminal record, testified that he had been forced to drive the getaway car. The jurors didn't buy it. They convicted him of armed robbery and possessing a rifle with an obliterated serial number. But the jury found him not guilty of four other charges, including for conduct related to a gun that was fired inside the bank while he was in the car.

Based solely on the conduct for which White was convicted, the federal guidelines recommended a sentence of 51 to 63 months—about four to five years. But U.S. District Judge David Bunning took into account the acquitted conduct and sentenced White to 264 months, or 22 years. In 2008, the U.S. Court of Appeals for the 6th Circuit ruled that the sentence did not violate White's Sixth Amendment right to trial by jury because it was less than the 25-year statutory maximum for armed robbery.

Five years after the Kentucky bank robbery, a federal jury in Washington, D.C., convicted three men of selling small amounts of crack cocaine. Under the guidelines, the defendants —Joseph Jones, Desmond Thurston, and Antwuan Ball—faced about two to six years in prison. Instead, Jones got 15 years, Thurston got just over 16, and Ball got almost 19. U.S. District Judge Richard W. Roberts settled on those sentences after concluding that the defendants had participated in a much broader conspiracy asalleged members of the Congress Park Crew, a street gangaccused of selling drugs in Southeast D.C. But the jury had rejected that very allegation.

The U.S. Court of Appeals for the D.C. Circuit nevertheless upheld the sentences. "Although we understand why appellants find sentencing based on acquitted conduct unfair," it said in June 2014, "binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime."

That October, the Supreme Court declined to consider the case. But by that point, at least three justices were troubled by Watts and thought the Court should have taken the opportunity to revisit its approval of acquitted-conduct sentencing. "This has gone on long enough," Justice Antonin Scalia wrote. "We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable." Scalia's dissent was joined by Justices Ruth Bader Ginsburg and Clarence Thomas, forming an unlikely trio. They were one vote short of the number required to take up the case.

The defendants were not the only ones dismayed by the sentences that Jones, Thurston, and Ball had received. The year after the trial, one of the jurors in the case had written a letter to Judge Roberts, who had sentenced the men, expressing his disbelief. "Can this be true?" he asked. "Through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts. What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight?" He added: "It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty, but on the charges for which the District Attorney's office would have liked them to have been found guilty."

'Not Guilty Means Not Guilty'

In June 2023, the Supreme Court declined to hear Dayonta McClinton's argument that he had been unconstitutionally punished for murder after a jury acquitted him of that crime. But that did not mean the Court was ignoring the issue.

"The Court's denial of certiorari today should not be misinterpreted," wrote Justice Sonia Sotomayor. "The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year. If the Commission does not act expeditiously or chooses not to act, however, this Court may need to take up the constitutional issues presented." In a separate statement, Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett agreed that "it is appropriate for this Court to wait for the Sentencing Commission's determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct."

Six months later, the commission unveiled several proposed amendments aimed at curtailing the use of acquitted conduct at sentencing. In April 2024, the commission's seven members—four Democrats and three Republicans—unanimously approved an amendment that says "relevant conduct" at sentencing "does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction."

A note to that amendment explains: "There may be cases in which certain conduct underlies both an acquitted charge and the instant offense of conviction. In those cases, the court is in the best position to determine whether such overlapping conduct establishes, in whole or in part, the instant offense of conviction and therefore qualifies as relevant conduct."

U.S. District Judge Carlton Reeves, the commission's chair, explained the rationale for the amendment: "Not guilty means not guilty. By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system."

The amendment took effect on November 1. But it is hard to predict its impact on future cases for two reasons. First, the caveat about "overlapping conduct" seems to leave some wiggle room. Second, the sentencing guidelines are advisory, not binding. So while the amendment may send a stern message, judges are not obligated to heed it.

Whether the commission has the legal authority to impose any such restriction at all is a matter of debate. Skeptics cite a federal law that says "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." It's not clear whether the defendant's "conduct" includes behavior underlying charges that a jury rejected.

"I think this has to be the Supreme Court," says Easha Anand, a professor at Stanford Law School and a former attorney at the MacArthur Justice Center, where she represented several people who were sentenced based on acquitted conduct. "The sentencing commission is making a policy determination about how it's appropriate for courts to impose a sentence to ensure uniformity. Now, that's an incredibly important policy determination, but that's [still] a policy determination. It's not a determination about what is constitutional and what isn't….It's the Supreme Court that should be the arbiter of the Fifth and Sixth amendments."

Even that policy determination, to the extent that it influences judges, is limited to federal courts. By contrast, a Supreme Court decision that deemed acquitted-conduct sentencing unconstitutional would constrain state as well as federal courts. Although the supreme courts of Hawaii, Michigan, New Hampshire, and New Jersey have deemed the practice inconsistent with state constitutional guarantees, it is still allowed in most states.

In September 2023, Sens. Richard J. Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill that would have prohibited acquitted-conduct sentencing in federal courts. It attracted support from several high-profile Democrats, including Sens. Cory Booker of New Jersey, Tammy Baldwin of Wisconsin, Amy Klobuchar of Minnesota, and Jon Ossoff of Georgia. The co-sponsors also included two Republicans: Sens. Mike Lee of Utah and Cynthia Lummis of Wyoming. Although that bipartisanship might seem encouraging, the legislation failed to gain traction, as did similar proposals in prior Congresses.

If neither Congress nor the Supreme Court intervenes, the sentencing commission's amendment will remain the best hope for critics of acquitted-conduct sentencing. But in addition to the question of whether judges will listen, it remains unclear whether the commission will decide that the amendment should apply retroactively, which would allow resentencing of previously convicted prisoners. Retroactivity could be a lifeline for many defendants—including McClinton, who has now been behind bars longer than the maximum the guidelines recommended based on his convictions.

Jessie Ailsworth was released from federal custody in 2019, but he is still paying close attention to this debate. "I stood with my lawyer and heard 'not guilty' over and over," he told the commission at a March 2024 hearing. His 1996 trial on drug conspiracy charges ended with 28 acquittals and seven convictions: three counts of possessing crack with the intent to sell it, three counts of food stamp fraud, and one count of using a communication facility to distribute drugs. But even though the jury found him not guilty of the most serious charges, the judge relied on those charges in sentencing him to 30 years in prison.

"I learned responsibility, which took some time," Ailsworth explained. "But the hardest lesson I've learned is the lesson I learned at sentencing….Not guilty verdicts are meaningless at sentencing if you have even one guilty verdict. In a system based on justice and fairness, where is the fairness in that?"

It's a question many similarly situated defendants, whose stories often go unnoticed, likely have found themselves asking. It is also a question that jurors, whose mandatory service purportedly serves as a check on the government, may continue to ask themselves.

"Not guilty means not guilty," Judge Reeves said as he unveiled the amendment aimed at curtailing acquitted-conduct sentencing. Time will tell if the government makes good on that promise.