by Jo Ellen Nott

The U.S. Sentencing Commission is a government panel that formulates federal sentencing policy. On January 13, 2023, the commission made public proposed amendments to current federal sentencing guidelines and asked for comments. One amendment seeks to diminish judges’ controversial power to impose longer sentences based on conduct for which a jury has already acquitted the defendant – commonly referred to acquitted conduct sentencing.

Judges acquired the power to enhance defendants’ sentences after the U.S. Supreme Court found in 1997 that an acquittal verdict determined by a jury does not prevent a judge from imposing a longer sentence after considering the conduct that led to the acquittal.  The burden of proof for a criminal charge must be proven beyond a reasonable doubt to a jury; whereas, a judge can use a lower standard of proof in which the facts are proven based on a preponderance of evidence.  

As unfair and bizarre as it may seem, this finding allows federal judges to decide “if it were more likely than not” that the defendant committed the offense. This type of decision raises defendants’ scores under federal sentencing guidelines and results in longer prison sentences than would be the case without taking into account the conduct for which the defendant was acquitted.  

The consideration of acquitted conduct in sentencing has exasperated members of Congress, criminal justice advocacy groups, and the federal judiciary who rightly point out such sentences are in violation of defendants’ Fifth and Sixth Amendment rights. 

Bills from both sides of the aisle have been introduced in Congress over recent years to prohibit the use of acquitted conduct at sentencing, but none have been successful.  Senator Chuck Grassley (R) of Iowa has co-sponsored one of these bills.  He calls the use of acquitted conduct in sentencing un-American and unacceptable: “A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty.”

The Dickie Lynn case is an extreme example of the use of acquitted conduct in sentencing gone wrong.  Lynn was a former Florida Keys drug smuggler sentenced to seven life sentences and only one out of the 21 defendants charged to receive a life sentence.  The judge enhanced Lynn’s score under federal sentencing guidelines for being the leader of the sprawling drug enterprise, which he was acquitted of, and for possessing a firearm, for which he was never convicted.   

Although the commission’s guidelines are not binding, if the proposed amendment is adopted, federal judges will be required to honor the acquitted conduct amendment as part of their decision-making process or explain why they did not if they chose to disregard it.  

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