The Second Circuit affirmed Asaro’s sentence, and Asaro filed a cert petition, asking the Supreme Court to resolve a fundamental question of criminal procedure that has now been percolating for many years — do the Fifth and Sixth Amendments allow a federal court to sentence a defendant based on conduct underlying a charge for which the defendant was acquitted by a jury? Cato has filed an amicus brief in support of the petition, arguing that the practice of sentencing defendants based on acquitted conduct is inherently at odds with the understanding of the jury trial in the Anglo‐American legal tradition, and especially contrary to the special sanctity and unassailable finality of jury acquittals. Permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a jury trial, but also denies the community their proper role in overseeing the administration of criminal justice. As three members of the Court have recently noted, “[t]his has gone on long enough.” Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from denial of certiorari).
It is especially important to protect the sanctity of jury acquittals now, in light of the near‐disappearance of the criminal jury trial generally. Today, jury trials have been all but replaced by plea bargaining as the baseline for criminal adjudication, and there is ample reason to doubt whether the bulk of these pleas are truly voluntary. If defendants know they may be sentenced based even on acquitted conduct, that massively ratchets up the pressure to accept a plea in any case where the prosecutor charges multiple, related offenses, as even acquittals on the more serious charges are no guarantee against harsh sentencing. Precluding sentences based on acquitted conduct would therefore be a small but vital safeguard against the wholesale erosion of the jury trial itself.
