Sentencing Considerations and Acquittals (Part 4)

The New Jersey Supreme Court continued in relevant part: Federal courts have broadly held that Watts survived Booker and thus permit reliance on evidence of acquitted conduct by sentencing courts. But the practice of relying on acquitted conduct in sentencing has not gone unquestioned among federal judges, and approaches to the issue among state courts have been decidedly mixed.

In People v. Beck, the Supreme Court of Michigan concluded that “once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.” 939 N.W.2d 213, 216 (Mich. 2019), cert. denied, 140 S. Ct. 1243 (2020). In reaching that conclusion, the Beck court distinguished Watts on the ground that Watts considered the use of acquitted conduct not through the lens of due process, but rather only in “the double-jeopardy context.” Id. at 224. The Court agrees with the Michigan Supreme Court that Watts is not dispositive of the due process challenge presented here, and therefore turns to the New Jersey Constitution.

The New Jersey Constitution is a source of fundamental rights independent of the United States Constitution. The Federal Constitution provides the floor for constitutional protections, and our own Constitution affords greater protection for individual rights than its federal counterpart. The doctrine of fundamental fairness reflects the State Constitution’s heightened protection of due process rights. Despite the absence of the phrase due process in that paragraph, this Court has construed the expansive language of Article I, Paragraph 1 to embrace the fundamental guarantee of due process. An important part of that due process guarantee is the doctrine of fundamental fairness, which serves as an augmentation of existing constitutional protections or as an independent source of protection against state action. Here, the Court applies the doctrine to consider whether acquitted conduct may be considered in sentencing defendants. The reference to the federal “floor” of our constitutional protections is a basic principle of state constitutional law. Justice Pierre-Louis and I learned this from an authority on the subject, Professor Robert Williams.