The Unspoken Repercussions of Acquitted Conduct Judicial Reform (Part 1 of 2)


This is a two-part article. Part One will explain what acquitted conduct is and how it is currently being used during sentencing. It will also show how the recently introduced Prohibiting Punishment of Acquitted Conduct Act of 2019 (the Act) would eliminate that use.

Part Two will bring up repercussions of the Act that are not being discussed by the national media but could have broad detrimental effects on jurisprudence in the United States.

Acquitted conduct refers to acts for which a person was criminally charged and found in a court of law to be not guilty of having committed. This would seem to imply that this conduct was not something for which you would receive punishment. While it is true that you won’t be punished for this conduct directly, it turns out that if you are convicted of something else, the original conduct for which you were found not guilty can be used to increase your sentence for the conviction. If you are found not guilty of unlawful conduct, that means that your actual conduct was lawful. So how can lawful conduct be used to impose a harsher sentence? It all begins with a law in the United States Code known as Title 18 USC §3661: Use of Information for Sentencing:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

On the surface it is reasonable. If you are convicted of a crime, the court should be able to determine what kind of person you are as part of the process of determining the length of your sentence. If the crime was a fluke, and you’ve never done anything wrong in your life, it might be reasonable for the court to choose a lighter sentence. If your record is fifty pages long, and indicates a serious trend toward greater violence, it might be reasonable for the court to choose a harsher sentence.

In order for the various Federal courts to hand down consistent sentences for similar crimes, the United States Sentencing Guidelines were created. These guidelines contain recommended sentence ranges for crimes. Given different circumstances associated with any given individual’s conviction, longer or shorter sentencing ranges may be chosen. In United States v. Watts, 117 S. Ct. 633, 635 (1997) (per curiam), it was clarified that the information that is referred to in Title 18 USC §3661 and is used in determining a sentencing range could be broadly various and could be of a nature that may otherwise be inadmissible as evidence.

This means that a sentencing judge, when determining a sentence for a conviction, has broad authority to use and interpret all kinds of information. This includes the ability to effectively ignore a jury’s finding of not guilty and to decide that your conduct was in fact not lawful and should be viewed as a black mark against your character that should be used to deliver a longer sentence than you would otherwise have received.

There are three types of conduct that can be considered when adjusting a sentencing range to the circumstances surrounding a conviction. They are:

Relevant Conduct:

The conduct a sentencing judge may take into account when formulating a sentence. It includes an array of activity, usually considered to be unlawful acts or omissions, that occurred in relation to the offense of conviction (not including the activity constituting the offense of conviction itself) deemed pertinent to assessing the defendant’s culpability. When determining the applicable guideline range, a sentencing court may consider conduct that is neither formally charged nor is an element of the offense of conviction.

Unadjudicated Conduct:

Uncharged or unadjudicated conduct are acts potentially characterized as criminal for which the offender’s legal guilt has not been formally adjudicated-clearly falls within this rubric.

Acquitted Conduct:

Acquitted conduct refers to “acts for which the offender was criminally charged and formally adjudicated not guilty, typically by the finder of fact after trial. Use of acquitted conduct occurs when the sentencing judge relies on such acts as justification for enhancing the defendant’s sentence. However, acquitted conduct is distinct from unadjudicated conduct, and less clearly within the court’s purview at sentencing.

Of these three types of conduct, objections surrounding the use of acquitted conduct during sentencing have arisen. First and foremost is the objection to conduct that was determined by a jury to be lawful being used to extend a sentence. But there are other objections including:

Acquitted conduct can also be part of a strategy called overcharging used by prosecutors to obtain plea bargains and extended sentences without the need to prove anything in court. In this strategy, additional charges are filed against a defendant that the prosecutor knows have insufficient evidence to lead to a conviction. During trial, the jury will find the defendant not guilty of these charges, and only convict the defendant of the main charge. However, during sentencing, the prosecutor knows that the sentencing judge can use the acquitted conduct of those not guilty charges to increase the sentence for the crime of conviction. This allows evidence that is insufficient or inadmissible during trial to be used against the defendant during sentencing. The abuse of the sentencing guideline procedures by prosecutors in this regard is widespread.

This is why two U.S. Senators, Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), from opposite sides of the aisle, are introducing a bill to stop the use of acquitted conduct during sentencing. From their press release:

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment. A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty. The use of acquitted conduct in sentencing punishes people for what they haven’t been convicted of. That’s not acceptable and it’s not American. Back in 2014, Justices Scalia, Thomas and Ginsburg all agreed, but weren’t able to hear the case and stop the practice. With this bill we will finally prohibit under federal law what many already find patently unconstitutional,” Grassley said.

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt. However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct. This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial, and our bipartisan bill would make it clear that this unjust practice is prohibited under federal law,” Durbin said.

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and

Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

It is difficult, as a layman, to find argument with this idea. After all, how can conduct that has been adjudicated as lawful be used to punish you? If this bill passes it will no longer be used in that manner, and that might seem to be a good thing.

In Part Two, we will explore unintended repercussions of the Prohibiting Punishment of Acquitted Conduct Act of 2019.

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