Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

Supreme Court to decide if you can be punished after an acquittal

On Behalf of | Jan 11, 2023 | Criminal Appeals

This may come as a shock. Being acquitted of a crime doesn’t mean you can’t be punished for committing it. People can and do get punished for crimes they got acquitted of committing.

It happens when a person is charged with more than one crime. If they are acquitted of one or more crimes but not all, they will still be sentenced for the crimes they were convicted of. When the judges calculate the sentences in these cases, they are allowed to take the acquitted conduct into account as long as they believe the defendant was more likely guilty than not.

Daytona McClinton, for example, was convicted of robbing a pharmacy. In the same trial, the jury acquitted him of murder. Nevertheless, when it came time to be sentenced for the robbery, the judge added 13 years to his sentence because he believed McClinton was more likely than not guilty in the murder, too.

Why is this legal? There was a Supreme Court case in 1997 that specifically allowed it. Ever since then, advocates for the defense and other reformers have urged the court to overturn that decision.

It might happen next month. Four defendants, including Daytona McClinton, have appealed to the Supreme Court after being punished for acquitted conduct. The court has not said whether it will take up their cases.

If it does, there is a fairly good chance the court would declare sentencing for acquitted conduct unconstitutional. According to the Associated Press, there is reason to believe that Justice Clarence Thomas, Justice Ketanji Brown Jackson and Justice Brett Kavanaugh would be inclined to rule that way.

“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial,” Justice Kavanaugh wrote in 2015, according to the AP.

The court could be ready to abandon the practice

It’s fair to say that people are generally outraged by judges considering acquitted conduct in sentencing. Indeed, 17 former federal judges signed a brief in favor of Daytona McClinton.

However, the Department of Justice defends the law.

It will be interesting to see how today’s court views this issue. Justice Jackson, a former public defender who also once served on the U.S. Sentencing Commission, could play a pivotal role. She replaced Justice Stephen Breyer, who generally supported judicial discretion in sentencing.

We hope the court does take up this important issue and rules it unconstitutional for judges to take acquitted conduct into account. Due process and the presumption of innocence demand it.

Archives

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)