This Article attempts to answer those questions both historically and theoretically. On a historical level, it traces the heretofore unexamined course of the congressional, judicial, and administrative actions leading from a pre-1970s sentencing regime that viewed any use of extra-trial evidence in sentencing as constitutionally suspect to the 1997 case that embraced prior acquittal sentencing as a foregone conclusion. On a more theoretical level, the Article traces the justification for prior acquittal sentencing to two doctrinal tensions: the differing goals of trials and sentencing and the semiotic gap between acquittal and innocence. As outside forces exerted pressure on those two tensions, the case for prior acquittal sentencing grew more compelling. In response, Congress twice chose to modify the statutory regime governing prior acquittal sentencing, codifying it in more categorical terms. Each codification encouraged judges to mechanize their use of prior acquitted conduct at sentencing, at times leading to instances of prior acquittal sentencing blatantly at odds with the regime’s underlying logic. The Sentencing Guidelines continued that mechanization, effectively rendering the use of prior acquitted conduct at sentencing automatic.
In the wake of Booker and Watts, however, judges have a new opportunity to reassert discretion in the area of prior acquittal sentencing. This Article concludes by exhorting sentencing judges to do so actively by: (1) scrutinizing evidence of prior acquitted conduct for indicia of reliability and (2) balancing the good of accuracy in sentencing with the compelling public policy reasons weighing against any introduction of prior acquitted conduct at sentencing.