by Douglas Ankney

When Pontius Pilate declared he found “no fault” in the man before him, he sent Jesus to be crucified anyway. Two thousand years later, a version of this practice persists in America’s federal courts. It is called “acquitted conduct sentencing,” and it permits judges to increase a defendant’s punishment based on conduct for which a jury has acquitted him.

Dayonta McClinton learned this the hard way. In October 2015, McClinton, then 17 years old, joined five others in robbing a CVS pharmacy in Indianapolis. The group included Malik Perry, whom witnesses at trial would later describe as McClinton’s “best friend,” someone he was “like a brother” with, “real close.” The robbery went poorly. The safe was on a timer and would not open. The group fled with little more than cough syrup containing codeine and a small bottle of hydrocodone.

What happened next remains unclear to this day. Perry, upset at the meager take, refused to split the proceeds and walked away. Someone followed him and shot him in the back of the head. Perry had a large sum of cash on him. The government charged McClinton, the victim’s best friend, with the murder.

The jury did not believe it. After hearing the evidence, the jury convicted McClinton of his role in the CVS robbery but acquitted him of killing Malik Perry.

That should have been the end of it. Under federal Sentencing Guidelines, McClinton’s recommended sentence for the robbery conviction was 57 to 71 months, roughly five to six years. But at sentencing, U.S. District Judge Tanya Walton Pratt treated the murder as if the jury had never spoken. She found, by a preponderance of the evidence, that McClinton had committed the killing. This raised his offense level to 43, the highest the Guidelines permit, with a suggested range of 324 months to life imprisonment.

Judge Pratt then said something remarkable: “The driving force in this sentence is not what he’s been convicted of, actually.”

She sentenced McClinton to 228 months in federal prison – 19 years for a murder a jury found unproven.

Most Americans assume that a jury’s acquittal ends the matter, that “not guilty” means a defendant cannot be punished for that conduct. The legal reality is starkly different. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court held that a jury’s verdict of acquittal does not prevent a sentencing judge from considering the underlying conduct, so long as the judge finds it proved by a preponderance of the evidence, a “more likely than not” standard far lower than the “beyond a reasonable doubt” threshold required for conviction. State and federal courts have applied this principle for nearly three decades.

The case that would reshape American sentencing began with a search of Vernon Watts’ Sacramento home. Police discovered cocaine base in a kitchen cabinet and two loaded guns with ammunition in a bedroom closet. A jury convicted Watts of possessing cocaine with intent to distribute but acquitted him of using a firearm in relation to his drug offense, a charge requiring proof that the guns were connected to his drug activity. The acquittal should have mattered. Instead, the sentencing judge found by a preponderance of the evidence that Watts had possessed the guns in connection with the offense and enhanced his sentence under the federal Sentencing Guidelines.

A companion case presented the same question. In United States v. Putra, 78 F.3d 1386 (9th Cir. 1996), rev’d, 519 U.S. 148 (1997), authorities videotaped two cocaine transactions involving Cheryl Putra and a codefendant described in court records as “a major drug dealer.” A jury convicted Putra of aiding and abetting possession with intent to distribute one ounce of cocaine, but acquitted her of a second sale – involving five times that amount – that occurred the very next day. Despite the acquittal, the sentencing judge found by a preponderance of the evidence that Putra had participated in both transactions and aggregated the drug quantities to calculate her sentence.

The Ninth Circuit vacated both sentences. In Watts, the court held that the district judge had impermissibly “reconsider[ed] facts that the jury necessarily rejected by its acquittal.” In Putra, it ruled that increasing her sentence “would be effectively punishing her for an offense for which she has been acquitted.” At the time, every other federal circuit court had reached the opposite conclusion, permitting judges to consider acquitted conduct at sentencing. The Ninth Circuit stood alone.

On January 6, 1997, the Supreme Court sided with the majority. In a per curiam opinion issued without the benefit of oral argument, the Court reversed the Ninth Circuit in both cases. An acquittal, the Court declared, “does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” Because sentencing requires only proof by a preponderance of the evidence, a jury’s determination that conduct was not proved beyond a reasonable doubt does not bar a judge from finding that same conduct occurred. So long as the resulting sentence remains within the statutory maximum for the crime of conviction, there is no constitutional violation, the Court held.

In a single morning, with no oral argument and little public attention, Watts established the legal architecture for punishing the acquitted.

The human consequences became clear in the cases that followed. Roger Clayton White served as the getaway driver in a Kentucky bank robbery. A jury convicted him of armed robbery but acquitted him of all charges related to the use of weapons, including allegations that shots had been fired inside the bank. Based on his convictions alone, White’s Guidelines range was 33 to 41 months. But the sentencing judge, crediting the weapons conduct the jury had rejected, sentenced White to 264 months – 22 years. The enhancement added roughly 19 years to his prison term for conduct that 12 jurors determined was not proved. The Sixth Circuit affirmed, bound by Watts. United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc).

The pattern repeated in the nation’s capital. A federal jury convicted Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing what Justice Scalia later characterized as “very small amounts of crack cocaine.” The same jury acquitted all three of participating in a drug trafficking conspiracy as members of the “Congress Park Crew” street gang. Under the Guidelines, their sentences for the distribution convictions alone would have been 27 to 71 months, roughly two to six years. Instead, the judge found by a preponderance of the evidence that they had participated in the conspiracy the jury rejected. Jones received 180 months. Thurston received 194 months. Ball received 225 months, nearly 19 years for conduct a jury unanimously found unproven. The D.C. Circuit affirmed, but its opinion captured the discomfort felt by judges across the country: “Although we understand why appellants find the district court’s consideration of acquitted conduct unfair, it is not unconstitutional.” United States v. Bell, 744 F.3d 1362 (D.C. Cir. 2014).

For nearly three decades following Watts, the Supreme Court declined every opportunity to revisit acquitted conduct sentencing. But by 2023, the criticism had grown impossible to ignore, and it was coming from inside the Court itself.

When the justices denied Dayonta McClinton’s petition for certiorari on June 30, 2023, four of them took the unusual step of writing separately to explain why. Justice Sonia Sotomayor, in a detailed statement, acknowledged that “a defendant’s sentence can be dramatically increased on the basis of conduct for which a jury found the defendant not guilty.” She catalogued the mounting objections: acquitted conduct sentencing “minimizes the jury’s role” as “a safeguard of liberty,” gives the government “a second bite at the apple,” and undermines “the public’s perception that justice is being done.” Justice Brett Kavanaugh, joined by Justices Neil Gorsuch and Amy Coney Barrett, issued a separate statement agreeing that the practice “raises important questions” but urged patience. The U.S. Sentencing Commission, they noted, was “currently considering the issue.” The Court would wait.

The Commission did not make them wait long. On April 17, 2024, its seven members voted unanimously to adopt Amendment 826, which provides: “Relevant conduct 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.” Commission Chair Judge Carlton W. Reeves announced the decision with a simple declaration: “Not guilty means not guilty.” The amendment took effect on November 1, 2024.

Congress has moved to reinforce the Commission’s action. On December 16, 2025, around the seventh anniversary of the landmark First Step Act, Senators Dick Durbin and Chuck Grassley introduced the Prohibiting Punishment of Acquitted Conduct Act of 2025, which would codify the prohibition in federal statute. The bill has drawn endorsements from an ideologically improbable coalition: the American Civil Liberties Union and the Conservative Political Action Conference, the Brennan Center and Right on Crime, the Innocence Project and the Drug Policy Alliance. Few issues in criminal justice have achieved such bipartisan consensus.

But the path to reform remains incomplete. The Sentencing Commission’s amendment addresses only the calculation of the Guidelines range, the first step in federal sentencing. Judges retain statutory authority under 18 U.S.C. § 3661 to consider acquitted conduct when fashioning a sentence outside that range. Because the Guidelines are advisory rather than mandatory, a judge determined to punish acquitted conduct can still do so; the amendment simply makes it harder to justify.

The amendment also contains notable gaps. It applies only to acquittals in federal court, leaving judges free to consider state and tribal acquittals when sentencing federal defendants. It says nothing about “uncharged conduct” – acts the government chose never to bring before a jury at all. This creates a perverse incentive. Prosecutors may decline to charge certain offenses, knowing that a judge can enhance the sentence based on that uncharged conduct without the government ever having to prove it beyond a reasonable doubt. The amendment does not disturb this practice.

And critically, the Commission’s action applies only to federal sentencing. The constitutional question – whether acquitted conduct sentencing violates the Fifth and Sixth Amendments – remains unanswered.

State courts are divided. Hawaii, Michigan, New Hampshire, and New Jersey have held that their state constitutions prohibit the practice. State v. Koch, 112 P.3d 69 (Haw. 2005); People v. Beck, 939 N.W.2d 213 (Mich. 2019); State v. Cote, 530 A.2d 775 (N.H. 1987); State v. Melvin, 258 A.3d 1075 (N.J. 2021) – while the majority of states continue to permit it. Until the Supreme Court rules on the federal constitutional question, the patchwork will persist. As Justice Samuel Alito noted in his concurrence denying McClinton’s petition: even if the Commission acts, “that decision will not affect state courts, and therefore the constitutional issue will remain.”

Dayonta McClinton remains in federal prison, serving a 19-year sentence for a murder a jury found unproven. The Sentencing Commission’s amendment came too late for him; it does not apply retroactively to cases already sentenced. For McClinton and others like him, the only remedy lies in executive clemency or in a Supreme Court that has so far refused to act.

The phrase “not guilty” is among the most powerful words in American jurisprudence. It represents the collective judgment of 12 citizens that the government failed to prove its case beyond a reasonable doubt – the highest standard of proof known to law. But for nearly three decades, federal courts have treated these words as little more than a suggestion, a minor inconvenience to be circumvented at sentencing through a lower evidentiary bar.

The consequences are staggering. Dayonta McClinton sits in federal prison until approximately 2034 for a murder a jury determined he did not commit. Roger White’s sentence increased from a Guidelines range of 33 to 41 months to 264 months and added roughly 19 years based on conduct the jury had rejected. Antwuan Ball was sentenced to over 18 years based largely on a drug conspiracy that 12 jurors unanimously rejected. These are not abstract legal debates; they are years of human life, served for crimes that were never proven.

What makes the persistence of acquitted conduct sentencing particularly troubling is not merely its apparent unfairness but what it reveals about the relationship between citizens and their government. The jury trial exists precisely to interpose ordinary people between the accused and the state’s power to punish. When a judge can effectively override that verdict at sentencing, the constitutional promise of trial by jury is reduced to a procedural formality – a trial that determines guilt, but not punishment.

The Sentencing Commission’s 2024 amendment represents meaningful progress, but it is not a complete solution. The Guidelines remain advisory, meaning judges retain discretion to consider acquitted conduct outside the Guidelines framework. Only congressional action, legislation like the Prohibiting Punishment of Acquitted Conduct Act, can fully close this loophole in federal courts. And even then, the majority of criminal cases are prosecuted in state courts, many of which permit the same practice.

In a rare display of bipartisan agreement, critics of acquitted conduct sentencing span the ideological spectrum, from the ACLU to the Conservative Political Action Conference, from Justice Ginsburg to Justice Gorsuch. Their consensus reflects a simple truth: if “not guilty” does not protect a defendant from punishment for that very conduct, then the words have lost their meaning, and with them, a foundational promise of American justice.  

Sources: Reason; U.S. Sentencing Commission

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