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June 9, 2021

"Acquitted. Then Sentenced."

The title of this post is the terrifically economical title of this new commentary authored by Shana O’Toole is the founder and president of the Due Process Institute.  As regular readers surely realize, the commentary focuses on a remarkable sentencing reality that has long troubled me and it discusses the possibility that a legislative fix may be in the works.  Here are excerpts from a piece I recommend (including a footnote that I consider especially important):

Imagine being accused of robbery and murder, but ultimately being found not guilty by a jury of your peers.  Now imagine that just two years later, you are indicted again for a wholly unrelated and less serious criminal offense. You voluntarily plead guilty, expecting to receive a fair sentence. The prosecutors, the probation office, and your defense lawyer all agree that current law sets an appropriate prison sentence ranging between 2.5 years to 3.5 years.

Your case is then assigned to the same judge who presided over your first case.  She sentences you to eight years in prison — more than double the highest end of the range that anyone else involved in the criminal legal system would have told you to expect.  And when she does so, she explains that when she went back over her old notes from your first trial, she determined there is a 51% chance that you should have been found guilty of those crimes, so she’s ignoring the jury’s earlier verdicts and now basing your sentence for this crime on those past unproven crimes.

If you think this describes what happens in a bad movie or under some authoritarian regime, you're wrong.  This describes a real case, and the practice is known as acquitted conduct sentencing.

Earlier this year, a bipartisan group of senators introduced legislation that will provide much-needed reform.  Tomorrow, this bill, the Prohibiting Punishment of Acquitted Conduct Act, will face its first major hurdle: a Senate Judiciary Committee markup.

The bill is a first step to addressing the many injustices caused by acquitted conduct sentencing.  It will prohibit federal judges from increasing a person’s prison sentence for one offense on the basis of another offense for which a jury had found the person not guilty.

Perhaps the most apparent problem with acquitted conduct sentencing is that it erodes our system’s presumption of innocence and the fundamental principles of fairness and justice.  Many lawyers and activists argue that it undermines the Sixth Amendment right to a jury trial — a pillar of the American criminal legal system, which requires that juries, not judges, determine the facts essential to a prison sentence.

Yet acquitted conduct sentencing remains permissible in every federal court and a majority of state courts. While the actual number of impacted persons has yet to be quantified,[FN1] based on the number of federal appeals we know that the practice is widespread.  At my organization, the Due Process Institute, our office mailbag is full of letters from those trapped behind prison walls who are serving sentences well past what their actual convictions should have brought them.

[FN1] It is almost impossible to say how many people have been directly impacted by the practice since no entity in our federal legal system currently tracks that data. No judge in any of our 94 distinct federal judicial districts is required to document when he or she relies on acquitted conduct in their sentencing decision. And there is often inadequate documentation of acquitted conduct sentencing placed on the public trial record....

Some members of the Supreme Court have raised concerns.... The view that acquitted conduct sentencing is unconstitutional has also won support from lower court judges across the political spectrum.  But the majority of the Supreme Court appears to remain unconvinced.

Without Supreme Court action, we must look to Congress for a remedy.  Thankfully, the legislative fix for this problem is relatively easy. Congress need only amend the law to explicitly exempt the use of acquitted conduct as a basis for increasing a person’s sentence.  The congressional history of 18 U.S. Code § 3661 — the part of the law dealing with the use of information for sentencing — indicates that the law was enacted to provide broad discretion to federal judges when considering information during sentencing.  But it does not appear that the statute was explicitly enacted to permit the specific practice of acquitted conduct sentencing.

The political case for abolishing the use of acquitted conduct at sentencing should appeal to sensibilities on both sides of the political aisle.  That’s why the Senate bill and a similar one in the House of Representatives have each received support from Democrats and Republicans.  In an era in which such bipartisan agreement is increasingly rare, this is an opportunity for Congress to pass meaningful legislation that will make our justice system more fair and effective.

It’s time to put an end to acquitted conduct sentencing, and the Senate’s legislation is a good start.  Tomorrow, the Judiciary Committee should vote to move this legislation forward unamended and allow it to come to the Senate floor for a vote.

June 9, 2021 at 03:51 PM | Permalink


A question: How often is the acquitted conduct for which a greater sentence is applied completely unrelated to offenses where a conviction is actually obtained?

While I don't necessarily have problems with what I understand to be the usual case where the acquitted and convicted conduct are tied together I admit to being troubled where the two are wholly unrelated.

Posted by: Soronel Haetir | Jun 9, 2021 4:19:57 PM

I guess the real question is should you be able to impose a long sentence on Al Capone for tax evasion. If you think that character is relevant (and certainly defense counsels regularly introduce evidence of good character unrelated to the offense behavior as mitigating evidence at sentencing hearings), then uncharged and acquitted conduct is just as significant in assessing character as attending church regularly.

While it is hard to look back through a modern lens at the understanding of the framers (particularly as the framers "normal" sentences were much harsher than our current sentences reducing the potential impact of prior bad acts on sentencing), the traditional understanding of sentencing procedure is that everything is fair game for the sentencer.

I know that defense attorneys, as part of open plea deals, regularly argue that judges should not consider the dismissed charges. But if you make that a rule, there could be unintended consequences. Prosecutors are regularly willing to drop charges because they believe that the sentence to be imposed on the remaining charges will be sufficient. But part of the analysis that makes the remaining counts sufficient is the ability of the courts to consider the total picture. You get rid of that potential, then you might not get the reduced charges with the result that sentences go higher.

Posted by: tmm | Jun 9, 2021 5:20:53 PM

"acquitted conduct is just as significant in assessing character as attending church regularly"

Depends on why there was an acquittal. If the acquittal is a result of there being serious doubt that the crime occurred, actually going to church or something can be a better way to assess character.

"Prosecutors are regularly willing to drop charges because they believe that the sentence to be imposed on the remaining charges will be sufficient."

I'm not sure how much is covered by the legislation here, but this seems to be different from the "acquitted conduct" concern.

The charges were dropped. There wasn't an acquittal as a result (example given) of a whole process and jury decision. It isn't acquitted conduct from the past. It is basically a plea -- "we will drop this if you plea to that" -- regarding current prosecutions.

It isn't "two years later" after acquittal. The "everything usually is factored in" comment is noted. The current rule can benefit a defendant in various instances.

But, this seems to talk past a basic concern of the piece.

Posted by: Joe | Jun 9, 2021 6:18:28 PM

The case the post is referring to is United States v. Asaro, where the defendant was allegedly a capo in the mafia. He was acquitted on RICO charges relating to 40 years of mob activity (including the Lufthansa heist and a murder where his son pleaded guilty to moving the body). He pleaded guilty to having some mob associates torch a guy's car after the guy cut him off in traffic. The sentencing judge viewed the acquitted conduct for the other case as being relevant to the "the history and characteristics of the defendant," 18 U.S.C. s. 3553(a), because he was in a position to order mob associates to torch the guy's car because he was high up in mob. So, while I certainly agree the use of acquitted conduct at sentencing is problematic, I'm not sure it's accurate to say the acquitted and convicted conduct were unrelated in this case.

Posted by: Tre | Jun 10, 2021 11:28:50 AM

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