The Washington Times has the story today of a defendant convicted for a $600 drug deal. He had previously been acquitted of much more serious charges -- namely, racketeering and conspiracy charges arising from his leadership of a violent drug gang in Washington, DC. He got an 18 year sentence for the $600 deal because the trial judge relied upon some of the information adduced with respect to the more serious allegations.
The use of acquitted conduct really riles the defense bar, and, to be fair, it does have a counter-intuitive feel to it, at least at first blush. But it has long been used at sentencing, and rightly so. The reason is simple. "Acquitted" doesn't mean "didn't do it" (O.J. Simpson, call your office).
If one believes that sentencing should reflect actual reality, there is nothing wrong with using acquitted conduct, and plenty right with it.
Today's story has a background. For years, the defense bar has been urging the Sentencing Commission to change the Federal Sentencing Guidelines so as to bar the use of acquitted conduct.
There are several reasons the Commission has, thus far, refused, and that any action it might take in the future would not necessarily get the defense bar where it wants to be.
First, there's no indication the Commission dislikes the present state of the law.
Second, the Commission is not a court, and cannot overrule Congress (indeed it works the other way around). Congress's policy is set forth in 18 U.S.C. 3577: "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."
Third, even if the Commission wanted to change the acquitted conduct rule and could get away with it, such conduct could still be considered by any judge who cared to. After US v. Booker, decided more than six years ago, the Commission's guidelines are advisory only; judges are no longer bound by them. And many if not most judges would continue to take account of acquitted (and uncharged) conduct, because they understand that sentences should reflect the whole reality of the defendant's behavior and attitude (a point that in other contexts defense lawyers insist upon).
Fourth, it simply makes no difference what the Sentencing Commission does about the acquitted conduct rule so long as it continues to enjoy support in the Supreme Court. Sentencing judges pay some attention to the Commission, but a lot more to the Supremes. In both US v. Watts, 519 US 148 (1997), and Booker, the Supreme Court has made it clear that considering acquitted conduct is proper.
Of course none of this answers directly the question whether it's fair to consider acquitted conduct at sentencing, but it is. As noted, just because the defendant gets acquitted of X hardly means he didn't do X. Acquittals happen all the time for reasons unrelated to factual innocence. There are, for example, dopey prosecutors, dopey jurors, erroneous jury instructions, compromise verdicts, disappearing evidence (sometimes courtesy of witness intimidation (or murder)), and of course good old-fashioned perjury, which goes on all the time.