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

This is the second part of a two-part series. In Part One, it was explained what acquitted conduct is and how it is being used during sentencing. It was also shown how the Prohibiting Punishment of Acquitted Conduct Act of 2019 would eliminate that use. Now, in Part Two, we will look at repercussions of the Prohibiting Punishment of Acquitted Conduct Act of 2019 that are not being discussed in the national media but could have broad detrimental effects on jurisprudence in the United States.

If, with respect to sentencing, acquitted conduct is removed as a form of relevant conduct, a problem will emerge after this Act goes into effect that springs from the fact that unadjudicated conduct can become acquitted conduct in subsequent trials. To understand how this becomes a problem, we must first look at why this is not currently a problem.

It is common for a sentencing judge to utilize unadjudicated conduct in determining an appropriate sentence for a defendant convicted of a crime. At some later time, the defendant could be charged and tried for that same unadjudicated conduct and found not guilty. This same conduct has now been determined by a jury to be acquitted conduct. Looking back at the sentence for the first conviction, it can be seen that this conduct was used to adjust the sentence. There is no problem, because even though the status of the conduct has now changed to acquitted conduct, acquitted conduct is currently also categorized as relevant conduct and can be used in sentencing.

After this Act goes into effect, this same scenario has a different outcome. When the new not guilty verdict changes the status of the conduct from unadjudicated to acquitted conduct and it is discovered that this conduct was used to adjust the original sentence, a problem occurs. The defendant can now claim that it was improper to use this conduct to adjust the original sentence and file a motion to have the sentence vacated.

The significance of this is not in the susceptibility of sentences to being vacated, nor even in the lower confidence in the judicial system that may follow. The significance lies in the fact that one type of conduct is being treated as two types of conduct: both unadjudicated and acquitted conduct are unconvicted conduct – conduct for which the defendant has not been convicted thru due process. By treating one type of conduct as two – particularly when one type can be converted into the other – creates instability in the sentencing process.

The Prohibiting Punishment of Acquitted Conduct Act of 2019 arbitrarily rules out unconvicted conduct only when it has been adjudicated – yet allows the continued use of unconvicted conduct if it has not been adjudicated. Adjudicated or not, the defendant is still having his sentence adjusted based on conduct for which he has not been convicted. It is important to note that while the use of acquitted conduct can effectively overturn the verdict of a jury in terms of the sentence handed down, it does not necessarily have this effect, and therefore is not always inappropriate.

In Punishment Without Conviction: Controlling the Use of Unconvicted Conduct in Federal Sentencing, Gerald Leonard and Christine Dieter in the Berkeley Journal of Criminal Law, Vol. 17:2, Fall 2012 state:

…we believe that the use of unconvicted conduct at sentencing is often legitimate, as the Supreme Court has held. At the same time, we share much of the outrage of scholars who object to this practice… The issue, after all, is not so much the use of acquitted conduct but more broadly the use of unconvicted conduct. That is, we should be less focused on judicial disregard of acquittals and more broadly concerned with the imposition of punishment for any conduct that has not been proven at trial (or by plea). Whether that conduct was “acquitted” or never charged at all, we should be very worried when it suddenly surfaces at sentencing, dramatically enhancing the defendant’s punishment…

Moreover, once one sees that the problem is much bigger than acquitted conduct, and that the issue of unconvicted conduct arises whenever any fact-finding is done at sentencing, it becomes implausible to advocate a universal rule [Author: or Act] against the use of such conduct at sentencing. The Supreme Court has firmly rejected such a rule, and to eliminate the use of unconvicted conduct at sentencing would radically alter centuries of established practice, pushing sentencing closer to a straight-time system—one in which every offender convicted of the same offense serves exactly the same time.

Acquitted conduct, like any form of unconvicted conduct, can have legitimate and just applications in the sentencing process. The solution imposed by this Act of eliminating acquitted conduct from relevant conduct will not only create instability in the judicial system, but will arbitrarily halt certain uses of unconvicted conduct that are beneficial in determining sentences that fit the crime.

Leonard and Dieter go on to state:

Using unconvicted conduct to contextualize the conviction is appropriate, but punishing an offender for the unconvicted conduct is not.


To justify the use of acquitted conduct, the [Supreme] Court pointed to the difference in standards of proof—”beyond a reasonable doubt” at the conviction stage and mere preponderance at the sentencing stage—and the fact that general verdicts do not represent particularized findings of fact by the jury. Thus, an acquittal on one charge need not exclude the evidence underlying that charge from the sentencing proceeding on a related charge.

The true problem, then, is not that acquitted conduct is used in sentencing, it is that unconvicted conduct in general is allowed by the United States Sentencing Guidelines to be used inappropriately, or perhaps more properly, is not sufficiently restricted by the Guidelines. When unconvicted conduct, including acquitted conduct, is used to put a conviction into the context in which it was committed and thereby allow the sentence to reflect the circumstances of the convicted crime, justice prevails and said use is legitimate and appropriate. It is only when unconvicted conduct is used to allow the sentence to punish for a separate and unconvicted offense that its use is inappropriate. As indicated by Leonard and Dieter:

Thus, the conundrum: How does one determine, as a general matter, when an enhancement has crossed the line from appropriately accounting for the convicted offense in its full context to inappropriately punishing for a separate offense, of which the defendant has never been convicted? After more than twenty years of Guidelines sentencing, the federal system still operates without meaningful rules to prevent punishment beyond the offense of conviction.


Senators Durbin and Grassley are properly motivated in wanting to address this issue, but their solution of eliminating one aspect of unconvicted conduct from the sentencing process misses the true and broader issue. Not only will it not solve the problem, it will introduce instability and inconsistency to the judicial process. Congress has already created the solution to the problem. In 1984, Congress passed the Sentencing Reform Act, which created the United States Sentencing Commission. This commission was tasked with creating the United States Sentencing Guidelines. It is the Sentencing Commission that has failed in its duty to recognize these problems and to revise the Guidelines to address them. It will likely take an iterative process to reach a final solution for this complex and difficult problem, but a better solution than the current state must be found.

Senators Durbin and Grassley should withdraw the Prohibiting Punishment of Acquitted Conduct Act of 2019 because it does not even begin to address the complexity of the problem and will exacerbate it. The broad-based support this Act has is motivated by its legitimate intent, but unfortunately it delivers a sound bite instead of the thesis required by the facts. The Senators should, instead, put their efforts into motivating the Sentencing Commission to revise the Sentencing Guidelines to better restrict unconvicted conduct to contextualizing convictions and prevent its use to punish for an unconvicted offense.

In Section V of a Simplification Draft Paper, Discussion Paper, Relevant Conduct and Real Offense Sentencing, the Staff of the Sentencing Commission made the following observations:

Fourth, the Commission could change the way relevant conduct is used in calculating sentences but leave in place the current scope of relevant conduct. As will be discussed in future briefing papers, relevant conduct is applied in a long list of case-specific aggravating and mitigating factors. Because these aggravating and mitigating factors are applied in formulas with specific numerical values given to each factor and because all aspects of relevant conduct can drive sentences, the importance of the scope of relevant conduct is greatly increased. In other words, if relevant conduct were not so pivotal in sentencing or if it were applied differently (more simply, like some of the state systems), it might not be so complicated or so feverishly litigated. Also, if the impact on sentences of uncharged, acquitted, or dismissed conduct were limited, many of the criticisms concerning fairness could be addressed.

As stated above, currently, relevant conduct beyond the offense of conviction can drive a sentence. The Commission could limit the way uncharged, acquitted, or dismissed counts could be used in the sentence calculation. This could be done in a variety of different ways, including placing a cap on the increases attributable to unconvicted conduct or implementing a single upward adjustment for uncharged misconduct.

From this it is clear that the Commission is aware of the problems with relevant conduct and its subsets of convicted conduct and acquitted conduct that are driving support of the Act. It can also be seen that the Commission is aware of multiple strategies available for addressing them. It is further evident that in consideration of the complexity, difficulty, and interrelatedness to other aspects of the Guidelines, a simplistic fix involving the mere elimination of just one type of relevant conduct rather than symmetrically modifying the multi-level uses of relevant conduct in general would be a disaster for American jurisprudence. The most effective and cohesive course of action to address these issues is to require the Sentencing Commission to modify the Sentencing Guidelines with great discretion in the means by which it is accomplished.

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