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March 29, 2022

US House overwhelmingly votes, by a margin of 405-12, for "Prohibiting Punishment of Acquitted Conduct Act of 2021"

I continue to believe that federal sentencing reforms can continue to be an arena for bipartisan achievements in Congress (as we saw with the Fair Sentencing Act during the Obama Administration and with the FIRST STEP Act during the Trump Administration).  Of course, the recent SCOTUS confirmation hearings provided a reminder that some legislators on some criminal justice issues are going to favor partisan attacks over responsible discourse.  Nevertheless, my hope springs eternal and news from Congress last night bolsters this hope. 

Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

I am so very pleased to see this very modest bill, but still very meaningful proposal, move forward and receive such overwhelming support from Representatives in both parties.  I hope this legislation can get a vote in the Senate ASAP.  

A few of many, many, many prior related posts:

March 29, 2022 at 08:44 AM | Permalink


About time!!

Posted by: Michael R. Levine | Mar 29, 2022 10:20:37 AM

Thanks for sharing, Doug! CCJ's Task Force on Federal Priorities included this in its 2020 list of recommendations for federal reform.Here's some background for those interested in even more context on this issue: https://counciloncj.foleon.com/taskforce/federal-priorities/rec4/

Posted by: Jenifer Warren | Mar 29, 2022 11:41:52 AM

So long as guilt and sentencing employ different standards I continue to believe this is a mistake. Although I would be quite happy with an additional jury option that actually is 'innocent' rather than 'not guilty'. And if the jury determines 'innocent' at the BRD threshold, then yes, I would say that conduct should be completely out of bounds for sentencing consideration.

Posted by: Soronel Haetir | Mar 29, 2022 3:35:17 PM

Soronel Haetir --

Correct. Even if this proposal goes through, however, there's an easy option for prosecutors: Just charge the one or two counts you're most sure will result in conviction, then bring in the rest of the defendant's related (but uncharged) mischief under the relevant conduct rule.

Posted by: Bill Otis | Mar 29, 2022 5:04:26 PM

@Bill Otis: That is true, but prosecutors typically get convictions on most counts that they try. While giving up some counts would allow the relevant conduct to come in at sentencing, they would relinquish many convictions they would otherwise have had.

Posted by: Marc Shepherd | Mar 29, 2022 5:21:02 PM

Marc Shepherd --

I think most prosecutors look at the number of guilty defendants they help put away and for how long, not specifically the number of counts. But for however that may be, the name of the game is to get the earned sentence with the fewest complications, and the procedure I suggest will help do that.

Posted by: Bill Otis | Mar 29, 2022 5:38:52 PM

Does anyone have empirical evidence either way on the implied assumption I think may underlie Bill's workaround? I.e., in a discretionary sentencing regime, do judges sentence differently when Def is convicted of A & B vs. when Def is convicted of A only and the prosecutor brings in B as relevant conduct which the judge accepts?

I would theorize that judges may give less weight to B without a conviction in fashioning a sentence because B would be less reliably established without a full trial. But that is ideally an empirical question, albeit one that may be hard to answer.

Posted by: Jason | Mar 29, 2022 6:00:38 PM

Jason --

My experience is that judges are fully comfortable with the routine, longstanding and present rule that sentencing facts need only be proved by a preponderance. Indeed, the more a judge is into discretionary as opposed to rule-bound sentencing, the more comfortable he will be with having the greater degrees of freedom he gets with the preponderance standard. I might add that the Guidelines, which still carry some weight, do not at any point suggest that relevant conduct should be downgraded at sentencing when compared to offense-of-conviction conduct.

Posted by: Bill Otis | Mar 29, 2022 8:15:23 PM

A related concept that has long offended me is that under current law, convicted defendants do not necessarily get to cross examine those providing relevant conduct evidence (such as drug quantity) at sentencing. The Constitutional right to confront and cross-examine one's accusers only extends to the trial and ends upon a guilty verdict. I have seen men in prison with long sentences, based upon dubious drug quantities provided for sentencing, where defense counsel never had an opportunity to confront and cross-examine the witness. By contrast, in a case from the EDNY, defense counsel did get to confront and cross-examine a last minute (added to the witness list 48 hours prior to sentencing) prosecution sentencing witness effectively, with different results. Following a 2 week long continuance of the sentencing hearing, defense counsel had done his research and was prepared. He impeached the prosecution's witness, who had testified that he had engaged in drug deals with the defendant in New York on certain dates, with he fact that at the times of those alleged drug deals, he was actually an inmate in the California Dept. of Corrections and could not have been in New York. The Judge was livid with the AUSAs for presenting such false evidence in his court room. How could the AUSAs not have known their witness was incarcerated at the time he alleged he engaged in drug deals with the defendant in New York? Being able to cross-examine witnesses providing relevant conduct testimony for sentencing makes a huge difference, and is necessary for our system of criminal justice to function properly.

Posted by: Jim Gormley | Mar 30, 2022 8:40:54 AM

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