Can a Federal Judge Sentence You for a Crime Your Jury Says You Didn't Commit? The Answer May Terrify You

Congress takes up the issue of "acquitted conduct."

Can a federal judge sentence you for a crime your jury says you didn't commit? In a sane world, the answer would be "no." If a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then doles out the sentence should be able to consider only that one guilty verdict.

Yet federal judges can, and often do, use what's called "acquitted conduct"—charges for which a person has been found not guilty—when sentencing defendants for the crimes the jury says they did commit. It's a horrifying bug in the federal criminal justice system that doesn't get nearly enough attention. Until now. 

Sens. Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that would expressly prohibit the use of acquitted conduct at sentencing. "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," Grassley said in a statement released this week. "That's not acceptable and it's not American."

The power of acquitted conduct is a deadly arrow in the prosecutor's quiver. The fact that a judge will consider at sentencing every offense the prosecutor charges, even if jurors don't buy the prosecutor's pitch, essentially allows prosecutors to game the justice system. They can charge a defendant with an offense they know they can prove beyond a reasonable doubt, and then charge more serious offenses, with tougher penalties, that they can't prove. Even if jurors act responsibly by convicting only on charges proved beyond a reasonable doubt, and refuse to convict on the reach charges, the prosecutor still wins when the judge takes all the charges into consideration at sentencing.  

"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," Durbin said in a statement. "However, federal law inexplicably allows judges to override a jury verdict of 'not guilty' by sentencing defendants for acquitted conduct."

A laundry list of criminal justice reform groups supports Durbin and Grassley's bill, titled the Prohibiting Punishment of Acquitted Conduct Act. The bill would amend the federal criminal code "to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing," and it would "define '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."

The bill has support from several libertarian and conservative groups, including Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries. 

It's not hard to see why this bill has bipartisan support. But to understand why the practice exists at all—and why some people will inevitably eventually oppose this bill—it helps to think of the federal criminal code as a choose-your-own-adventure book in which three out of every four narrative choices end in "go to prison." Police and prosecutors want to keep it that way.

The use of acquitted conduct at sentencing empowers prosecutors at the very early stages of the justice adventure. Upon gathering enough evidence to make an arrest, the prosecutor can file enough charges that, if the defendant is convicted of all of them, he or she will go to prison for a very long time. So the prosecutor encourages the defendant to plead guilty and receive a lesser sentence. Staring down the barrel of 20 years in prison if they lose at trial, versus 10 or five if they plead guilty, more than 95 percent of federal defendants plead guilty.

But what if the defendant didn't do everything she was accused of, or if the prosecutor's evidence against her is weak? Well, she can take her case to trial and have it out before a jury. And instead of 20 years in prison, or 10, or five, maybe she is acquitted of all charges and gets no time in prison, or is convicted of only a fraction of the charges and spends only two or three years in prison.

That's when acquitted conduct comes into play. Prosecutors can lose before the jury and still win at sentencing. 

"Using acquitted conduct to set sentences heightens the temptation of prosecutorial overreach by blunting the downside to the government," reads an amicus brief filed by FAMM* and the National Association of Federal Defenders in Asaro v. United States, an acquitted conduct case that the Supreme Court has been asked to hear. The authors go on to write: 

If the defendant succumbs to the government's aggressive charges and pleads guilty, the government wins; if he goes to trial and is convicted on those charges, the government still wins; and if he goes to trial and persuades a jury that he is innocent of them, the government still wins, so long as it secures conviction on a more easily proved offense and persuades the sentencing judge of his guilt by a preponderance of the evidence. When acquittal of certain counts is just a "speed bump at sentencing"…prosecutors have little to lose by larding an indictment with charges they cannot prove beyond a reasonable doubt. The government has conceded as much, acknowledging that punishing acquitted conduct encourages charges prosecutors would otherwise forgo.

This is a bad practice. Thankfully, it's one Congress appears willing to address without waiting for the Supreme Court.

• Full disclosure: I served as FAMM's communications director from 2014 to 2016.