Judge Fisher concluded in relevant part: And other circuit judges, albeit a minority, have joined the chorus in criticizing the practice. See United States v. Brown, 892 F.3d 385, 408 (D.C. Cir. 2018) (Millett, C.J., concurring) (asserting that “allowing courts at sentencing ‘to materially increase the length of imprisonment’ based on conduct for which the jury acquitted the defendant guts the role of the jury in preserving individual liberty and preventing oppression by the government”); United States v. Mercado, 474 F.3d 654, 662 (9th Cir. 2007) (Fletcher, J., dissenting) (recognizing “such a sentence has little relation to the actual conviction, and is based on an accusation that failed to receive confirmation from the defendant’s equals and neighbors”); United States v. Faust, 456 F.3d 1342, 1349 (11th Cir. 2006) (Barkett, J., concurring) (stating a “strong belief . . . that sentence enhancements based on acquitted conduct are unconstitutional under the Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment”). See also James J. Bilsborrow, Note, Sentencing Acquitted Conduct to the Post-Booker Dustbin, 49 Wm. & Mary L. Rev. 289, 333 (2007); Barry L. Johnson, The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can Be Done About It, 49 Suffolk U. L. Rev. 1, 26 (2016); Orhun Hakan Yalincak, Critical Analysis of Acquitted Conduct Sentencing in the U.S.: “Kafka-Esque,” “Repugnant,” “Uniquely Malevolent” and “Pernicious”?, 54 Santa Clara L. Rev. 675, 723 (2014); Mark T. Doerr, Note, Not Guilty? Go to Jail. The Unconstitutionality of Acquitted-Conduct Sentencing, 41 Colum. Hum Rts. L. Rev. 235, 252-56 (2009); Lucius T. Outlaw III, Giving an Acquittal Its Due: Why a Quartet of Sixth Amendment Cases Means the End of United States v. Watts and Acquitted Conduct Sentencing, 5 U. Denv. Crim. L. Rev. 173, 187-89 (2015). We share Judge Bright’s sense of “wonder” at “what the man on the street might say about this practice of allowing a prosecutor and the judge to say that a jury verdict of ‘not guilty’ for practical purposes may not mean a thing.” United States v. Canania, 532 F.3d 764, 778 (8th Cir. 2008) (concurring opinion).
Even if we were willing to assume that Watts is not offensive to federal constitutional principles, there is nothing in our jurisprudence that suggests the New Jersey Constitution would fail to give an acquittal the rightful place at sentencing it deserves. Our Supreme Court has recently spoken about this subject. In State v. Tillery (2019), the Court considered an appeal of a sentence where the judge had relied on a view of the evidence on which the jury was deadlocked, and expressed concerns about a sentencing judge’s use of such information when the defendant faced the potential of being tried again on the deadlocked counts. However one might view Tillery’s impact on an acquitted charge, the Court clearly held that courts should not consider evidence offered on deadlocked charges at sentencing “unless and until the defendant no longer faces the prospect of prosecution for those charges.” Id. at 327. Despite its references to Watts, the Court did not resolve the question posed here about the significance of an acquittal at sentencing.
There is a sense that prosecutors and judges want to consider acquitted conduct at sentencing as a means to punish defendants whom they feel got away with something. This approach undermines the constitutional right to a jury trial. It also overlooks how often jurors convict because they feel that defendants get away with too much, as opposed to a fair analysis of whether the case before them was proven beyond a reasonable doubt.