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July 24, 2013

"Critical Analysis of Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'?"

The title of this post is the title of this paper recently posted on SSRN and authored by Orhun Hakan Yalincak. Here is the abstract:

The use of acquitted at sentencing is a highly contested practice in sentencing theory and policy. In federal court and many state courts across the United States, once a defendant is convicted, judges are routinely permitted, in fact, required to increase a defendant’s sentence based on relevant conduct, of which he was acquitted at trial, or conduct for which he was never charged. This essay highlights the issues that arise from the use of acquitted conduct sentencing under the now advisory U.S. Sentencing Guidelines. The use of acquitted conduct under the relevant conduct provisions of the Guidelines has resulted in substantially longer prison sentences with a disparate impact on racial and ethnic minorities. Acquitted conduct sentencing treats the offence admitted by a defendant, or proven to a judge or jury’s satisfaction beyond a reasonable doubt as simply a starting point in calculating a defendant’s sentence; the modified real offense approach, which incorporates relevant conduct and mandates consideration of acquitted conduct, determines the end sentence.

This essay concludes that use of acquitted conduct should be prohibited both on constitutional and normative grounds. While it is outside the scope of this essay to offer a comprehensive solution or alternative to the use of acquitted conduct at sentencing, the key observation is that, since the common thread linking the constitutional and normative issues arise from the fragmented nature of U.S. sentencing policy, the solution must start with re-conceptualizing the theories underlying sentencing in the U.S.

July 24, 2013 at 10:58 AM | Permalink


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As defense lawyers uniformly insist, the court should consider everything about the defendant's background, education, employment, civic involvement, and overall lifetime behavior in imposing sentence.

...unless some aspects of that behavior reflect poorly on him, in which case they should be ignored.


Posted by: Bill Otis | Jul 24, 2013 3:24:16 PM

Acquitted conduct is a red herring. If the judges can't use that fact to increase a within guideline sentence, they will find something else. Acquitted conduct has instrumental value only.

Posted by: Daniel | Jul 24, 2013 6:24:00 PM

Personally i consider using "aquitted - ie NOT GUILTY" conduct to do anything to a defendant a criminal act caling for capital punishment for the offending individual as a direction violation of the constitution of the united states.

Posted by: rodsmith | Jul 24, 2013 9:21:47 PM

Please correct me if I'm mistaken (yeah, like THAT'S something people on this board need encouragement for:-) but isn't the entire notion of relevant conduct (including acquitted conduct) based on the study of what judges did in determining sentences BEFORE the Guidelines went into effect? i.e., when studying past patterns (which included determining the "Heartland" for sentences for specific offenses which became the original Guidelines) didn't scholars/USSC/whomever else determine that pre-1984 judges generally gave longer sentences to those whom the judges believed (by a preponderance of evidence) actually HAD committed some offenses of which they were acquitted? In other words, one can argue as a matter of fairness, or due process, that acquitted conduct should not be considered in determining a sentence, but there is really nothing new about the practice?????

Posted by: anon | Jul 25, 2013 9:55:23 AM

So many things. First, the problem in the federal system is not that judges have the discretion to consider uncharged and acquitted conduct -- which, yes, judges have always considered in the federal system and in many states -- but that federal judges are REQUIRED to calculate the guideline range using uncharged and acquitted relevant conduct AT THE SAME RATE as though the defendant had been charged and convicted. In other words, the judge does not "consider" uncharged or acquitted conduct in her discretion to increase a sentence by a few months or perhaps a few years, but MUST take it into account in calculating the correct guideline range, often increasing that range by five, ten, twelve, or twenty years, which then becomes the "starting point and initial benchmark" for the sentence and will be presumed reasonable on appeal in most circuits. The result is that the uncharged or acquitted conduct drives the severity of the sentence and the likelihood it will be affirmed on appeal; it is not merely a consideration to be thrown in the mix.

Second, the Commission's study (available at http://www.fd.org/navigation/select-topics-in-criminal-defense/sentencing-resources/subsections/useful-reports-testimony-and-other-materials) does not measure the extent to which uncharged or acquitted conduct increased sentences. The Commission's decision to count uncharged and acquitted conduct at the same rate as convicted conduct was a radical invention, unused by any state (something this article does not appear to recognize) and without empirical basis.

Third, it is true that even if judges were not required to use acquitted conduct to increase the guideline range, they could consider it to determine where to sentence within the range or to vary upward now that the guidelines are advisory. But most federal sentencing judges (and many appellate judges) do not think that the guideline range should be based on acquitted conduct. If you want proof, check out the Commission's 2010 survey of judges, http://www.ussc.gov/Research/Research_Projects/Surveys/20100608_Judge_Survey.pdf, or read their opinions. Many, if not most, would not vary upward by as much as the guidelines would require or even at all. In fact, some judges already have a policy of varying downward in the exact amount of a guideline increase based on acquitted conduct in order to mitigate the harshness of the rules. So it is unlikely that judges will just find another way to increase the sentence, masked as something else.

I am a defense attorney and work for the federal defenders.

Posted by: JNC | Jul 25, 2013 4:09:42 PM

I wonder what Gorusch's position on the use of acquitted conduct and uncharged conduct at sentencing....

Posted by: Farenheit451 | Apr 17, 2017 3:22:35 PM

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