How Judges Enhance Sentences by Supplanting ‘Not Guilty’ Verdicts with Private Findings that Defendants ‘Probably Committed’ Acquitted Offenses

by Douglas Ankney

Gregory Bell was indicted on 13 charges. He exercised his right to a jury trial. The jury acquitted Bell of 10 charges and convicted him of just three distribution charges that together added up to only five grams of crack cocaine. Since Bell had no significant criminal history, his Guidelines Sentencing Range (“GSR”) was 51-63 months in prison.

But at sentencing, the judge concluded Bell had probably participated in the acts for which he had been acquitted. The judge then used that conclusion to arrive at a higher GSR and sentenced Bell to 192 months (16 years) in prison.

Perhaps the Queen of Hearts in Alice’s wonderland may demand “acquit first, then punish,” but in America, this very real practice is known as “acquitted conduct sentencing.” This practice is generally defined by the use of acts for which the accused was criminally charged and formally adjudicated “not guilty” as a basis for enhancing the sentence on other charges that person was convicted of. Acquitted conduct sentencing is the standard, approved practice of all federal circuits as well as the state courts of Alaska, Georgia, Illinois, Montana, and Utah. (Until 2019, the state of Michigan also permitted acquitted conduct sentencing. See People v. Beck, 939 N.W.2d (Mich. 2019)).

This article will focus primarily on the federal judicial system and will explore: (1) how the disdainful practice of acquitted conduct sentencing originated and developed; (2) the flawed reasoning put forth to justify the practice; (3) the arguments put forth calling for an end to the pernicious practice; and (4) the efforts at reform.

Origin and Development

In the early part of the 20th century, the prevailing penal philosophy was one that embraced rehabilitation, which was perceived as morally and scientifically superior to retribution in criminal sentencing. In Williams v. New York, 337 U.S. 241 (1949), Justice Black opined that “the punishment should fit the offender and not merely the crime.” The rehabilitative ideal was tied to a specific setting for treatment growing out of developments in clinical psychology. As such, an indeterminate sentencing regime took hold. Each offender’s unique characteristics were taken into account through individualized sentencing.

The judge would impose a sentence range (e.g., from two to 20 years), and the offender’s rehabilitative progress determined the amount of the sentence served before release. The judge’s role was likened to a physician: crime was a “moral disease,” and the cure was entrusted to experts in the criminal justice field, one of which was the judge.

Consistent with this philosophy, judges considered a vast array of facts relevant to the character and conduct of the accused. Justice Black explained that the selection of an appropriate sentence required “possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams. Different standards of proof and evidence evolved so that judges would not be limited in the amount of information that might prohibit them from exercising their “clinical” role. Evidence prohibited at trial—such as hearsay—was admissible at sentencing, and the judge needed only find by a preponderance of the evidence (i.e., “more likely than not” or “a 51% probability”) that the evidence supported the factual determinations. For the Williams Court, the rehabilitative ideal not only justified entrusting judges and parole officials with enormous sentencing discretion, but also called for those “experts” to be “freed from any procedural rules that might limit the sound exercise of their discretion,” as Professor Douglas A. Berman explained in “Reconceptualizing Sentencing,” University of Chicago Legal Forum (2005). By 1970, the Williams holding was codified at 18 U.S.C. § 3577, which specified that “no limitation shall be placed on the information concerning the background, character, and conduct of a person” being sentenced. The Section was re-codified to 18 U.S.C. § 3661 in response to sentencing reforms of the 1980s.

In United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), Martin Sweig was convicted of just one of the 15 counts of perjury alleged at trial, and the jury acquitted him of the remaining 14. At sentencing, the judge imposed a sentence of 30 months, stating he based the sentence, in part, on evidence presented at trial relating to Sweig’s participation in the offenses for which he had been acquitted. Sweig appealed, arguing that, unlike other evidence courts may consider at sentencing, acquitted conduct was materially different because it involved re-litigation of facts previously decided by the jury.

But the Second Circuit ruled that acquittal “does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendant ... the jury may have believed all such evidence to be true, but have found that some essential element of the charge was not proved.” The Sweig Court affirmed the judgment.

However, growing problems with indeterminate sentencing eventually led to an institutional shake up. Judges had no training in how to exercise their considerable discretion. Sentencing was not taught in law schools; concepts such as deterrence and rehabilitation were not reflected in judicial training. There was wide disparity in sentencing for similar offenses. These disparities were shown to exist due to the differing philosophies of the judges and based on the characteristics of the offenders.

Concerned about the implications of incongruous sentencing results and the uncertainty caused by indeterminate sentencing, Congress passed the Sentencing Reform Act of 1984 (“SRA”). The SRA required, inter alia, courts to impose a determinate sentence and to state in open court the reasons for imposing the particular sentence. The SRA also abolished parole.

To assist courts in this regime, the SRA created the United States Sentencing Commission (“USSC”). The USSC was tasked with developing the United States Sentencing Guidelines (“USSG”). The USSG reflect what is characterized as a “modified real offense system.” This means the USSG determine punishment not only based on the offense of conviction, but also on the characteristics of the defendant and the circumstances specific to each offense. In theory, this means a repeat offender who beats his robbery victim will be punished more severely than the first-time robber who only threatened his victim.

Under this system, each federal offense is assigned a base offense level (“BOL”) from 1 to 43. Generally speaking, the higher the BOL, the more severe the offense and the greater the punishment. The sentencing court also considers the circumstances of the specific offense or the “real” factors based on the USSG categories of general adjustments and modifications for mitigating and aggravating circumstances. For example, a defendant that displayed or brandished a firearm would be subject to an increase of points added to his BOL.

The USSG also account for characteristics specific to the defendant. Each BOL has a Criminal History Category (“CHC”) from I to VI. Again, the higher the CHC, the greater the possible punishment. The USSG utilize a table with the BOL’s running top to bottom, 1 thru 43, and the CHCs running left to right, I thru VI. Where a BOL meets beneath the appropriate CHC, there is a box with a Guidelines Sentencing Range (“GSR”) showing either a range of months in prison or a life term. For example, the GSR of a BOL of 24 with a CHC of I is 51-63 months.
Sentencing courts must choose a specific term in months from the GSR (or “Life” if applicable) as the SRA replaced indeterminate sentences with determinate sentences.

Additionally, the language and philosophy of 18 U.S.C. § 3661 was incorporated into USSG §§ 1B1.3 and 1B1.4 under the heading “relevant conduct.”

Section 1B1.3(A) provides that sentencing judges are to consider “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.” And § 1B1.4 provides: “In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character, and conduct of the defendant, unless otherwise prohibited by law.” The SRA made it mandatory that the courts impose a sentence from within the calculated GSR, unless that sentence exceeds the statutory maximum prescribed by Congress. And in Witte v. United States, 515 U.S. 389 (1995), the Supreme Court of the United States (“SCOTUS”) held that sentencing courts are required to undertake the “relevant conduct” analysis of §§ 1B1.3 and 1B1.4.

Flawed Reasoning Offered
to Uphold Acquitted
Conduct Sentencing

In United States v. Watts, 117 S. Ct. 633 (1997), defendant Vernon Watts was indicted for possession of cocaine base, 21 U.S.C. 841(a)(1), and for using a firearm in relation to a drug offense, 18 U.S.C. 924(c). The jury found Watts guilty of the cocaine offense but acquitted him of the 924(c) offense. But at sentencing, the judge found by a preponderance of the evidence that “Watts had possessed the guns in connection with the drug offense.” Despite Watts’ acquittal of the 924(c) offense, the judge added two points to Watts’ BOL based upon the firearm when calculating the GSR and sentenced him to 262 months. Watts appealed.

A panel of the Ninth Circuit affirmed Watts’ conviction but vacated the sentence, United States v. Watts, 67 F.3d 790 (9th Cir. 1995), based on United States v. Brady, 928 F.2d 844 (9th Cir. 1991), in which the court held that “a sentencing judge may not, under any standard of proof, rely on facts of which the defendant was acquitted.” This Brady holding made the Ninth Circuit an outlier because every other federal circuit permitted sentencing judges to consider acquitted conduct. The Ninth Circuit remanded Watts for resentencing. The Government filed a petition for certiorari, which SCOTUS granted.

SCOTUS held that a sentencing judge may consider, for sentencing purposes, conduct of which a defendant has been acquitted if the conduct had been proven by a preponderance of the evidence. Watts. SCOTUS pointed to 18 U.S.C. § 3661 and USSG §§ 1B1.3 and 1B1.4, which give courts broad discretion to consider multiple types of information at sentencing, and explained that an acquittal “does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” Watts. In response to the Ninth Circuit’s concern that consideration of acquitted conduct punishes a defendant for a charge for which he or she had been found “not guilty,” SCOTUS cited the Witte Court’s explanation that “sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increases his sentence because of the manner in which he committed the crime of conviction.”

The Watts Court cited McMillan v. Pennsylvania, 477 U.S. 79 (1986), for the constitutionality of the preponderance of the evidence standard during the sentencing phase of criminal trials. In McMillan, SCOTUS upheld a provision of Pennsylvania’s Mandatory Minimum Sentencing Act (“MMSA”), which subjected defendants convicted of certain enumerated felonies to a mandatory five-year minimum sentence if the defendants were found, by a preponderance of the evidence, to have “visibly possessed a firearm” during the commission of the offense. According to SCOTUS, because the MMSA’s five-year mandatory minimum was a “sentencing factor,” and not an element of the underlying charged offense, proof beyond a reasonable doubt was not required, and the preponderance of the evidence standard satisfied due process. SCOTUS has since repeatedly reaffirmed that sentencing judges may determine by a preponderance of the evidence the facts relevant in selecting an appropriate sentence. See, e.g., United States v. Booker, 543 U.S. 220 (2005); Alleyne v. United States, 133 S. Ct. 2151 (2013). This line of flawed reasoning has led to horrific results as the following examples illustrate.

Cheryl Ann Putra was charged with aiding and abetting in connection with the sale to a government informant of one ounce of cocaine on May 8, 1992, and another count of the same offense for the sale of five ounces on May 9, 1992. The jury convicted her of the May 8th incident but acquitted her of the May 9th incident. At sentencing, the judge determined by a preponderance of the evidence that Putra had participated in the May 9th transaction. Explaining that Putra’s involvement in the May 9th transaction was “relevant conduct” under USSG § 1B1.3, the judge added the drug amounts from both transactions, which gave Putra a GSR of 27 to 33 months. Had Putra been convicted of both charged offenses, her GSR would have been the same 27 to 33 months. Without the use of the acquitted conduct, Putra’s GSR would’ve been 15 to 21 months. The court sentenced her to 27 months. See United States v. Putra, 78 F.3d 1386 (9th Cir. 1996).

In United States v. Mercado, 474 F.3d 654 (9th Cir. 2007), defendant Mercado was convicted by jury of various counts of drug conspiracy. But the jury acquitted Mercado of participation in three murders, violent crimes in the aid of racketeering, and assault with a deadly weapon. Based on his drug convictions, Mercado’s GSR was 30 to 37 months. But at sentencing, the judge considered the acquitted conduct, finding by a preponderance of the evidence that Mercado had participated in those crimes and sentenced him to 20 years in prison.

In the early 1990s, a jury in a Maine state court acquitted Henry Lombard, Jr. of two counts of murder. Then in 1994, a federal jury convicted Lombard of one count of illegal possession of a firearm. At his sentencing, the judge found that Lombard had participated in the two murders of which he had been acquitted, added points to his GSR, and sentenced him to life in prison.

In 2015, Vincent Asaro was tried on charges related to his alleged participation in a 1978 robbery and a 1969 murder. The jury acquitted Asaro of all charges. In 2017, Asaro pleaded guilty to a separate offense, and his GSR was 33-41 months in prison. But the judge who had presided at his earlier trial was also the judge who sentenced him on his 2017 conviction. The judge explicitly stated she was “firmly convinced” that the government had proved the charged crimes at the 2015 trial and sentenced Asaro to 96 months based on the acquitted conduct from that earlier trial. United States v. Asaro, No. 17-CR-127 (E.D.N.Y. Dec. 28, 2017).

On September 18, 2018, police recovered drugs and a firearm from a hotel room. Although the room wasn’t registered to Erick Osby, he had paid for a portion of the stay. Then on September 27, 2018, police found drugs and another gun in a vehicle where Osby was a passenger. Osby was charged with three drug-related offenses and a possession of a firearm offense in connection with the hotel room and two additional drug-related offenses and another firearm offense in connection with the vehicle. The jury found Osby guilty of only the two drug-related offenses stemming from the vehicle and acquitted him of all the remaining offenses. His GSR was 24-30 months on his convictions. But at sentencing, the judge found Osby had participated in the crimes for which the jury had acquitted him and calculated Osby’s GSR at 87-108 months. The judge sentenced Osby to 87 months—the same sentence Osby would have received had he been convicted of all seven counts.

Why Acquitted Conduct Sentencing Must End

The hallmark of the American judicial process, enshrined in the Sixth Amendment to the U.S. Constitution, is the right to a trial by jury and the concomitant right of requiring the government to prove guilt beyond a reasonable doubt. As observed by U.S. Supreme Court Justice Brennan, “the requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons.... There is always, in litigation, a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant in his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt.” In re Winship, 397 U.S. 358 (1970).

While the preponderance of the evidence standard is most often sufficient for determination of the facts in civil trials, the Winship Court found that, in criminal trials “a person ... would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”

The holdings of McMillan, Witte, and Watts are questionable in light of the sea change in SCOTUS’ Sixth Amendment jurisprudence beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). Consistent with Winship, Apprendi and its progeny have repeatedly upheld the principle that any sentencing fact that has the effect of increasing the statutory maximum punishment for an offense must be found by a jury beyond a reasonable doubt unless admitted by the defendant.

Since the SRA made the USSG mandatory, it could be argued that the GSR is the “statutory maximum,” and any fact that would increase the GSR must be found by a jury. But when confronted with this very issue, SCOTUS side-stepped it by excising language from the SRA that made the USSG mandatory, holding instead that the USSG are “advisory only.” United States v. Booker, 543 U.S. 220 (2005). In other words, the GSR initially calculated from the BOL and CHC would no longer be mandatory—i.e., the initial GSR would no longer be the statutory maximum punishment. This freed judges to continue the practice of increasing the GSR via relevant conduct based upon a preponderance of the evidence. The only limitation now would be the statutory maximum prescribed by Congress in the United States Code.

But as Circuit Judge Millett wrote in her concurring opinion in United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015), the “requirement that the jury, not a judge, find facts fixing the permissible sentencing range applies to statutory limitations; it is hard to understand why the same principle would not apply to dramatic departures from the Sentencing Guidelines range based on acquitted conduct. After all, the Supreme Court has held that, as a matter of law, a sentence within the Guidelines range is presumptively reasonable and lawful, and any ‘major departure’ from that range requires ‘significant justification.’” (Citing Gall v. United States, 552 U.S. 38 (2007)).

Judge Millet continued: “Because the Sentencing Guidelines have ‘force as the framework for sentencing,’ Peugh v. United States, 133 S. Ct. 2072, 2083 (2013), and because, in the usual case, ‘the judge will use the Guidelines range as the starting point in the analysis and impose sentence within the range,’ Freeman V. United States, 131 S. Ct. 2685, 2692 (2011), the Guidelines demark the de facto boundaries of a legally authorized sentence in the mine run of cases. Given that reality, the Sixth Amendment should not tolerate the use of acquitted conduct specifically rejected by the jury to provide the required ‘significant justification’ for” increasing a defendant’s sentence.” Bell.

In Jones v. United States, 135 S. Ct. 8 (2014), Justice Scalia, joined by Justice Ginsburg and Justice Thomas, observed in his dissent from the denial of certiorari that petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball had been convicted of distributing a small amount of cocaine base but acquitted of conspiring to distribute drugs. The USSG recommended sentences of 27 to 71 months for their convictions. But at sentencing, the judge found the petitioners had engaged in the conspiracy of which the jury had acquitted them—and based on that finding, the judge sentenced them to 180, 194, and 225 months respectively.

Scalia wrote, “Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been ‘substantively unreasonable’ and therefore illegal. If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, requires that each element of a crime be either admitted by the defendant, or proved to the jury beyond a reasonable doubt. Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime and must be found by a jury, not a judge. We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must either be admitted by the defendant or found by the jury. It may not be found by a judge.... For years, however, we have refrained from saying so.... This has gone on long enough.” (internal citations omitted)

Not only does permitting judges to find facts based upon a preponderance of the evidence violate the right to have one’s guilt proven beyond a reasonable doubt, in the context of acquitted conduct sentencing, it cuts to the heart of the right to a trial by jury and greatly diminishes the role of the jury.

The right to a jury trial developed as a “check or control” on executive power—an essential “barrier” between “the liberties of the people and the prerogative of the crown.” Duncan v. Louisiana, 391 U.S. 145 (1968). The tradition of independent juries standing as a barrier against unsupported or unjust prosecutions pre-dates the signing of the Magna Carta. Clay Conrad, Jury Nullification: The Evolution of a Doctrine (2d ed. 2014). A landmark pre-colonial decision on the sanctity of jury acquittals was Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670). Bushell was one of an English jury that refused to convict William Penn for violating the Conventicle Act, which prohibited more than five people assembling for religious services outside the control of the Church of England. The trial judge essentially ordered the jury to return a verdict of guilty and imprisoned the jurors when they refused. But the Court of Common Pleas granted a writ of habeas corpus to Bushell, cementing the authority of a jury to acquit against the wishes of the Crown.

In the American colonies, the independence of the jury was also firmly established. John Peter Zenger was charged with seditious libel for printing newspaper articles critical of the royal governor of New York. The jury refused to convict notwithstanding Zenger’s factual culpability. Albert W. Alschuler & Andrew G. Deiss, “A Brief History of the Criminal Jury in the United States,” 61 U.Chi.L.Rev. 867 (1994). Colonial juries often acquitted simply because they were aware of the consequences of a conviction. The juries were not only able—but were expected—to tailor their verdicts to prevent excessive punishment. William M. Blackstone, Commentaries on the Laws of England, Vol. 4 (1769) (juries often found the value of stolen goods to be less than twelvepence in order to avoid the mandatory death penalty for theft of more valuable goods). The jury trial was understood not just to be a fair means of deciding guilt or innocence, but as an independent institution designed to give the community a central role in the administration of justice.

For these reasons, the community has its own strong interest—separate from that of the individual defendant’s—in seeing that its verdicts are given great deference. And nowhere is that more true than in the context of a jury acquittal, which the constitution regards as inviolate. Burks v. United States, 437 U.S. 1 (1978). When judges sentence on the basis of acquitted conduct, they fundamentally undermine the community’s duty and prerogative to oversee the administration of criminal justice.

The five justices in the majority in Blakely v. Washington, 542 U.S. 296 (2004), were deeply disturbed by the USSG requiring an equivalent of a conviction for “uncharged, dismissed and acquitted crimes without the fundamental components of ... notice, jury trial, and proof beyond a reasonable doubt.” (Note: alleged facts in uncharged and dismissed charges may also be used by judges at sentencing to enhance the punishment—this practice is beyond the scope of this article as it is monumentally different from the practice of enhancing sentences based on facts that a jury has found untrue.) The five justices declared that “real conduct” sentencing and the related relevant conduct provisions of the USSG are an “assault” on the Sixth Amendment’s “fundamental reservation of power” in the people within “our constitutional structure.” The justices observed that “the jury could not function as circuit breaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely.

Additionally, acquitted conduct sentencing promotes racial bias and is laden with inequities directed at ethnic minorities. People of color and ethnic minorities make up more than 75% of the prison population but constitute only 25% of the U.S. population. And according to United States District Judge Lynn Adelman and his law clerk Jon Dietrich, the average sentence for a Black prisoner is about 25% longer than for a white prisoner. Said another way, more Black and ethnic minority defendants have acquitted conduct used against them than do white defendants.

Also, acquitted conduct sentencing enables coercive plea bargaining by stacking the deck in favor of the prosecutor. As Judge Millett explained in Bell, “factoring acquitted conduct into sentencing decisions imposes almost insurmountable pressure on defendants to forgo their constitutional rights to a trial by jury. Defendants will face all the risks of conviction, with no practical upside to acquittal unless they can run the board and are absolved of all charges.” Prosecutors often charge numerous offenses based on the alleged acts of the accused. Defendants are aware that even when acquitted of all charges save one, they might still receive the maximum penalty allowed as if they had been convicted on all charges. This leads many defendants to plead guilty to lesser offenses for shorter sentences—even when they are, in fact, not guilty.

Finally, acquitted conduct sentencing violates double jeopardy in that it does not respect the finality of the jury’s verdict while giving prosecutor’s a second chance to convict. That is, even though the jury acquitted of these offenses during the guilt phase, the prosecutor then gets another chance at sentencing to convince the judge based on a preponderance of the evidence that the defendant did perform the acts that led to the charged offenses. But one court has clearly stated how this violates the constitution: “The acquitted defendant is to be treated as innocent and in the interests of fairness and finality made no more to answer for his alleged crime.” State v. Wakefield, 278 N.W.2d 307 (Minn. 1979).

Attempts at Reform

To date, SCOTUS has steadfastly resisted opportunities to declare acquitted conduct sentencing unconstitutional. The Court has repeatedly denied certiorari in cases such as Jones that would have placed the issue squarely before it.

However, given SCOTUS’ persistent reluctance in confronting the unconstitutionality of acquitted conduct sentencing, other efforts at reform have been ongoing. Congress explicitly delegated to the USSC the “duty to review and revise the Guidelines.” Braxton v. United States, 500 U.S. 344 (1991). And in his concurrence in Bell, then Circuit Judge Kavanaugh (now U.S. Supreme Court justice) opined that “given the Supreme Court’s case law, it likely will take some combination of Congress and the Sentencing Commission to systematically change federal sentencing to preclude use of acquitted or uncharged conduct.”

But beginning with a proposal in 1993, the USSC has rejected amendments to limit the use of acquitted conduct under the relevant conduct provisions of the USSG. The SRA directed the USSC to present regularly amendments to Congress. Therefore, it seems that the USSC does possess the authority to propose any amendment it likes and submit it to Congress for review. But in Watts, Justice Scalia argued that § 3661 prohibits the USSC from amending acquitted conduct beyond consideration of the sentencing judge. If this were correct, then much of the USSG would already be invalid. For example, with regard to offender characteristics such as age, education, mental and emotional condition, physical condition, employment record, family and community ties, and prior good works in the community—these are excluded at sentencing. The same is true of age, sex, national origin, creed, religion, and socio-economic status.

Amending the USSG is not a novel idea. The USSC developed, considered, and rejected amendments that would have restricted use of acquitted conduct under the USSG in 1993, 1994, and 1997.

And members of Congress have also been actively seeking to end acquitted conduct sentencing. Senate Bill 601 (“SB 601”) was introduced in the 117th Congress (2021-2022) by Senator Richard Durbin, Chairman of the Senate Judiciary Committee. Titled the “Prohibiting Punishment of Acquitted Conduct Act of 2021,” SB 601 seeks, inter alia, to amend 18 U.S.C. § 3661 to prohibit any court of the United States from considering acquitted conduct for the purpose of determining the appropriate GSR, except for the purposes of mitigation.

SB 601 is endorsed by no fewer than 24 diverse organizations ranging from the National Association of Criminal Defense Lawyers to Americans for Prosperity to The Sentencing Project. (This Act has also been introduced in the House of Representatives as House Bill 1621 sponsored by Representative Steve Cohen.)

Conclusion

Acquittal, as a formal exoneration of criminal culpability, is unique. Prior to trial, all defendants are presumed innocent until proven guilty beyond a reasonable doubt. But an acquittal is more than a means of keeping that presumption intact. An acquittal is a declaration by a jury that the accused is innocent of the charged offense, and the accused cannot ever be held to answer again to those accusations. The jury’s verdict is a final and solemn public declaration of these facts—both to the government and to the community.

Allowing a judge at sentencing to cast aside the verdict as a meaningless formality and then to relitigate those facts to substitute their own findings—on a lesser standard of proof yet—is nothing less than the disparaging of our American judicial heritage and the emasculating of our constitutional right to trial by jury. Acquitted conduct sentencing nullifies the Fifth Amendment’s Due Process Clause and Double Jeopardy prohibition as well as the Sixth Amendment right to have one’s guilt proven to a jury beyond a reasonable doubt.

To paraphrase a visionary, those who hold illegitimate power over the lives of others will not voluntarily relinquish that power—it must be seized from them. Let us support the legislative efforts to end the practice of acquitted conduct sentencing. Let us support organizations actively seeking an end to acquitted conduct sentencing. Let us take back our power from those who trample the U.S. Constitution. Acquitted conduct sentencing must end now.

Additional sources: Addressing the Gross Injustice of Acquitted Conduct Sentencing, cato.org; Senate Bill 601 text, congress.gov; A Look at the Use of Acquitted Conduct in Sentencing, 88 Supreme Court Review 809 (1998); Acquitted, then Sentenced, persuasion.community; Critical Analysis of Acquitted Conduct Sentencing in the U.S.: Kafkaesque, Repugnant, Uniquely Malevolent, and Pernicious, Orhun Hakan Yalincak, 54 Santa Clara Law Review 873 (2014); If at First You Don’t Succeed - Abolishing the Use of Acquitted Conduct in Guidelines Sentencing, Barry L. Johnson, 75 N.C.L.Rev. 153 (1996); americansforprosperity.org

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