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November 6, 2019

"Acquitted Conduct Should Not Be Considered At Sentencing"

The title of this post is the title of this notable recent Law360 commentary authored by Robert Ehrlich, the former governor of Maryland. I recommend the full piece, and here are excerpts:

John Adams famously declared, “Representative government and trial by jury are the heart and lungs of liberty." Indeed, given the role the jury trial plays in our modern criminal justice system.

The jury trial was designed as an indispensable structural check on government. A safeguard the framers of the Constitution considered so paramount to a free people that it was enshrined in the Sixth Amendment.

Trial by jury is essential to preserving liberty because it protects individuals from arbitrary use of government power by allowing the people to act independently of the state. Accordingly, upholding the people’s role in the administration of justice is foundational to upholding the purpose of this procedural guarantee.

Against this background, U.S. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, recently introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill seeks to address the insidious practice known as acquitted conduct sentencing, wherein a judge enhances a sentence based on conduct underlying charges for which a defendant has been acquitted by a jury.

You read that correctly. Under current law, federal judges are permitted to sentence individuals based on charges for which a jury found them not guilty....

Lower standards of proof at sentencing — in conjunction with 18 U.S.C. Section 3661, legal precedent and application of the guidelines — means that federal judges may consider a wide array of relevant conduct in determining a defendant’s sentence, including conduct for which underlying charges have been acquitted by a jury. While the Supreme Court determined acquitted-conduct sentencing did not violate the double jeopardy clause in Watts, the court has never addressed whether the Sixth Amendment right to a trial jury prohibits the practice....

The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice.

While a defendant remains “not guilty” on paper, the sentencing judge’s veto of the jury’s verdict renders the acquittal meaningless for all practical purposes. Consideration of acquitted conduct at sentencing effectively eliminates the democratic role of the jury in the criminal justice system, inverting the power structure to allow government to limit the people rather than people to limit the government.

Acquitted-conduct sentencing is an affront to individual liberty, and judicial or legislative action would be welcome responses to the unconstitutional practice. The Prohibiting Punishment of Acquitted Conduct Act would amend 18 U.S.C. Section 3661 to explicitly preclude federal courts from considering acquitted conduct at sentencing, except as a mitigating factor. Congress should advance this simple reform to restore the Constitution’s basic guarantees of due process and the right to trial by jury.

A few of many recent and prior related posts on the acquitted conduct:

November 6, 2019 at 09:12 AM | Permalink


I'm very sympathetic with this, but I wonder if barring consideration of acquitted conduct is far enough. That would just incentivize the prosecution from not charging and instead just arguing conduct at sentencing. It seems to me that acquitted conduct and uncharged conduct are the same as far as omitting the jury.

Posted by: Erik M | Nov 6, 2019 9:26:51 AM

So long as the verdict remains one of saying the prosecution reached the beyond reasonable doubt threshold and not I really don't see the problem. There is a wide gap between beyond reasonable doubt and preponderance of the evidence.

Perhaps we really do need a third possible verdict, one that actually is a finding of innocence. And if we added such a choice then I would have no problem saying conduct related to such a verdict cannot be considered at sentence (at least as an inculpatory factor).

Posted by: Soronel Haetir | Nov 8, 2019 11:37:17 AM

I mostly agree with Soronel -- if there's an acquittal, the jury could be asked a follow-up question as to whether the acquitted conduct was established by a preponderance.

Posted by: Jason | Nov 10, 2019 8:14:40 PM

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