Criminal Justice

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."

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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. 

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  1. “federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.”

    “Inexplicably”, eh? Yep, it’s truly a mystery how this perversion of justice got to be law.

    1. Maybe Durbin was sleeping it off somewhere when this mysterious law was passed without any notice to him?

        1. In certain situations, it’s actually better not to keep too much of a record, especially when the pesky “constitutional” crowd starts nosing around. The fact of the matter is that federal judges are, and should be, allowed to do whatever they like, to make sure we have some real law and order in this country. Everybody knows that the distinguished federal courts find all sorts of grounds for upholding verdicts that were never even argued at all in the state court trials and decisions that they have to routinely review under one of them there fake law-book “statutes.” Heck, if the federal judges weren’t allowed to do whatever they like, how would we have secured any of the important verdicts in our nation’s leading criminal “satire” case? We worked hard here at NYU to help prosecutors secure the result in that case, and we’re not going to let any “free speech” or “constitutional” baloney stop us from doing what needs to be done. See the documentation at:

          https://raphaelgolbtrial.wordpress.com/

          1. Poor schmuck: A-1.
            Stuff your whining.

          2. Sure, until you set in front of one of these judges for something you didn’t do right? Or are you perfectly fine with spending a few decades in the funhouse for nothing? If so you must be a leftist.

      1. I came here whimsically wondering if because Durbin has a (D) after his name, you guys might actually favor the policy he opposes, or at least blame him for it somehow.

        Yet here you are, doing just what I daydreamed you’d do. Ah, whimsy.

        He’s the one fighting against it you partisan dolt.

    2. It didn’t “get to be” a law. That’s not how our system works. It got to be a practice because it wasn’t explicitly against the law. (And because common sense seems to be less common with every passing year.) With luck, soon it will be explicitly against the law and this ridiculous practice will be stopped.

      1. “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.”

        I suppose the Senator meant “*lack* of federal law”.

        1. Law and statute aren’t the same thing.

        2. “Federal law allows” and “lack of a federal law allows” are synonyms under our system of English law. Our legal tradition is ‘if it’s not explicitly illegal, then it’s allowed’. It would be different if our legal tradition was based on the Napoleanic Code which works from the principle that ‘if it’s not explicitly allowed, then it’s illegal’.

          (This, by the way, is why the state and local law in Louisiana is so radically different from the rest of the country. Their legal tradition does come from the Napoleanic Code.)

          1. This is incorrect. If the law explicitly allows the judge to choose, that would also fit.

          2. It’s funny because in France we says exactly the same about english laws…

      2. “It got to be a practice because it wasn’t explicitly against the law.”

        It is explicitly against the law. We just need to find judges who can count to two.

        1. Just looked it up. This goes back to United States v. Watts, 519 U.S. 148 (1997).

          Apparently the judges on the 9th Circuit could “count to two” (or at least take a lucky guess), as could Stevens and maybe Kennedy. Rehnquist, Scalia, O’Connor, Souter, Thomas, Ginsburg, and Breyer all held that:

          “In a 7-2 per curiam opinion, the Court held that a jury’s verdict of acquittal does not prevent a sentencing court from considering a defendant’s conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. Justices Antonin Scalia and Stephen G. Breyer concurred. Dissenting, Justice John Paul Stevens argued that the additional offense should have been required to have been proved beyond a reasonable doubt for sentencing purposes, where a defendant’s sentence was lengthened. Justice Anthony M. Kennedy, also dissenting, expressed the view that the cases should have been set for full briefing and consideration.”

          1. Yup. And if the Constitution said, “It’s totes OK for a person to be subject for the same offence to be twice put in jeopardy of life or limb, as long as you use a lower standard of proof the second time,” then the 7 vote majority would have been correct. But my copy of the constitution doesn’t say anything like that.

      3. This should be a shock but its not. The entire judicial system is an abuse of power. Without a doubt there are good people from Judges to prosecutors but they are clearly in the minority. Judges have appeared fro many decades to be more and more aggressive and over reaching in their authority. They are supposed to be servants of the people and yet most act like little tyrants and this practice is a perfect example of their abuse of power. Because its not a law but an accepted practice it means the judges have been willing participants. I can see the prosecutors angle on why they like it, it helps increase their own track record for convictions but for Judges to go along with this its just beyond disgusting.

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  2. “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.”

    When the two are in conflict, how is the remedy another federal law and not enforcement of constitutional dictates?

    1. I agree, though there’s nothing wrong with also having a statutory remedy, right?

      1. No, since the other option seems to be begging the Supreme Court to do its job.

    2. The Constitution only says you can’t be convicted, it doesn’t say you can’t be sentenced. Are you new here?

      1. I seem to recall something about due process and depriving people of liberty in there.

      2. “The Constitution only says you can’t be convicted, it doesn’t say you can’t be sentenced. Are you new here?”

        That reminds me of a smart-a** comment from many years ago: ‘The constitution says that you can’t *try* the president, but it doesn’t say that you can’t arrest him and rough him up.’

      3. “Sentence first, verdict afterwards.”

    3. Yeah, how is this not an obvious and blatant due process violation?

      1. It’s an obvious and blatant double jeopardy violation.

        1. The constitution bars double jeopardy, but it doesn’t bar triple jeopardy.

    4. Good question. And when will we see an article explaining how this usurpation and directed verdicts aren’t the same thing?

  3. This is reprehensible. Glad to see that someone is finally fixing it.

    1. I agree that it’s reprehensible – it’s also reprehensible that nobody’s been bothering to try fixing it until now. It’s not like this hasn’t been going on for years, so two cheers for Durbin and Grassley, but why weren’t you doing this 20 years ago?

      1. Yeah no shit.
        It would be nice to know how this ‘loophole’ made its way into the law in the first place.

      2. Um, because LP candidates got 12,851,633 votes in the 2018 mid-term elections? Twenty years ago Nick Sarwark didn’t have our backs?

    2. Its only because Joe Biden, Hunter Biden, Hillary Clinton, James Comey, Andrew McCabe, etc are facing imminent indictment.

  4. In that last debate the Democrats were talking about pardoning mostly every federal offender and completely redoing the way we deal with violation of criminal law. No more prisons and hellish sentences except for the violent crimes but everything else would be singularly focused on containing the damage as opposed compounding it with punitive reaction. If you steal then you pay back with interest. If you’re sick with addiction then you get medical treatment. So much of the criminal justice system is archaic and not merely pointlessly cruel but incubators of cruelty.

    1. Very good points. I really like the idea of constructive remedies, like ‘paying back stolen money with interest’ and they appear to be less prone to systemic abuse.

      That said, the drug laws and forced addiction “treatment” are very problematic, unecessary and always prone to severe abuse. First and foremost, you cannot help someone who refuses to be helped. Likewise, when it comes to Prohibition, the state is a drunkenly-wielded sledgehammer, at best -certainly not a scalpel. Thanks to a now deceased sibling, I have years of personal experience dealing with unconstitutional ‘drug courts.’ The state has basically awakened to the fact that the Drug War just ain’t working, and so figure at the very least, they may as well extort their cut and replenish their futilely drained coffers (or worse, profit!)

      In my state, say you get pulled over for speeding and you’re sober but the cop finds a joint. There’s no victim, but you now require ‘treatment’ which mandates you to provide free labor and subject yourself to what ‘Christian’ fundamentalist groups consider ‘addiction treatment.’ It also requires weekly payments to the state and many trips to the courthouse where you wait hours for drug testing that is often innacurate, which can obviously have severe negative effects on family and employment.

      There are many obstacles facing our criminal justice system (in addition to the ‘acquitted’ conduct mentioned in this article). Qualified immunity and a lack of malpractice insurance for police. The perverse incentives created by asset thiever…uh, ‘forfeiture.’ The monetization of the Drug War and for-profit prisons. The fact that we have more prisoners than any other nation, including COMMUNIST China, and that almost HALF of federal prisoners are incarcerated for Prohibition offenses.

      As a nation, we need to return to an emphasis on malum in se crimes. Government and LE will fight tooth and nail against this, as malum prohibitum offenses are the real moneymakers and a very effective social control mechanism, to boot. The tools to address real crime already exist: if your vice motivates you to steal, you get arrested for stealing. If it motivates you to kill, you go to prison for homicide.

      There are many salient arguments against Prohibition, but from a philsophical standpoint, Thomas Szasz was a visionary:

      https://en.wikipedia.org/wiki/Thomas_Szasz#A_person's_right_to_drugs

      1. While I agree that our current levels of incarceration are deplorable, it’s worth noting that if you include the Uighurs China is “re-educating” in internment camps, and the various (mostly political) prisoners they summarily execute, their prison population would be much larger than ours, though probably still not larger per capita.

        As a general point, authoritarian regimes don’t really have to imprison as many people simply because the nation itself is the prison.

        1. North Korea: 25,666,161. 100%

    2. There’s a lot of merit there, but don’t you think some white collar crime deserves prison time? Other thefts might warrant jail/prison as well, depending. Many wouldn’t be able to pay back with interest, in any case.

  5. I think they have belatedly discovered the “women, minorities hardest hit” angle and are expressing shock – shock! – that such a bad law could have been passed (by *someone*) in a spasm of law-‘n-order outrage.

    Specifically, I suspect it’s the Sentencing Commission which set up this rule, but it was Congress which empowered the Sentencing Commission. It’s your monster, Dr. Frankenstein, don’t express surprise.

  6. Good word. Terrify. So crazy that I’d think you invented it … except for the Durbin/Grassley bill.
    Thanks.

  7. Why should aquitted conduct be treated differently than non-charged conduct? That is ultimately what this would do. I am open to say that neither should be considered but treating them differently doesn’t make sense.

    1. Baby steps. Advocated by babies like Durbin and Gressley.

    2. “Why should acquitted conduct be treated differently than non-charged conduct?”

      Courts are prevented from considering acquitted conduct by the double jeopardy clause. SCOTUS has found otherwise, sure, but that merely means that the entire court who found that should have been impeached.

      1. Along with those who invented the qualified immunity doctrine.

  8. I guess this wouldn’t help Ross Ulbricht if he wasn’t charged with the conspiracy to murder for which he was sentenced.

  9. This is how woodchippers got started.

  10. So is this also an end to double-jeopardy?

    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.”

    Often an action is both a state and federal crime – but it’s the same ACT. If one is criminally charged in state court and found not guilty, does that mean any federal charge would have to lack mention of any ACT for which the defendant was found not guilty?

  11. Judges want “discretion” to consider all relevant factors in imposing a sentence. Thus, they can consider a defendant’s prior conduct, his character, anything at all that gives them what a judge wants to “judge” them on, what a judge thinks is the key to determining how they should be punished. What will the difference really be if this law passes, i.e., if a judge can consider charged and convicted conduct and uncharged conduct in imposing a sentence, but not charged and acquitted conduct? Judges will still have the discretion to do whatever their pitiful shrunken brains tell them is the best and most appropriate punishment. And their sentencing statements will then be designed to cover up inappropriate considerations, even acquitted conduct – just like they do now, and have done for centuries.

  12. the Prohibiting Punishment of Acquitted Conduct Act

    Wow, a PPACA that libertarians can support!

  13. This happened to me. I had a bunch of conduct that the judge said was not against the law used against me at sentencing because the judge did not have the ability to disregard irrelevant conduct as not criminal and therefore irrelevant. Judges can do this because the law specifically allows them to consider the “history and characteristics of the defendant.” As a result people are sentenced more for who they are than what laws they broke.

    1. Hence, all us white guys will soon be sentenced for the hate crimes of being white guys.

  14. You know what else has “a horrifying bug in the federal criminal justice system”? Accomplice Liability Laws!

  15. Kind of like “driving while black” except it’s “breathing while white”.

    1. Jesus Christ, is everyone a professional victim nowadays?

  16. wooo, that interesting but is not the jury decision is the last decision or judge will also not overrule that decision?
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  18. “But what if the defendant didn’t do everything she was accused of, or if the prosecutor’s evidence against her is weak?”

    Is it a sure thing that the defendant is female? Please stop using sexist language.

  19. Obscene violations of justice by judges is “inextricable” only to the willfully blind populace who have been brainwashed to believe that we live in a free country, with “justice for all”. The opposite is true. But the myth of a indispensable, benevolent ruling elite is taught from the first day of school – post grad. Only the strongest minds survive this indoctrination.

  20. There is, or at least used to be, another loophole with regard to damages “resulting from” an offense. I was involved in defending a case years ago of an alleged stock “pump and dump” operation. The Feds moved in, arrested the defendants, and the price of the stock in question collapsed. Our guy thought he was plea bargaining by pleading guilty only to not having disclosed his “insider” status while marketing the stock. The Feds turned around and sentenced him on the basis of his offense having “caused” tens of millions in damage to shareholders. Nevermind that the stock didn’t tank because of his non-disclosure, it tanked because the Feds arrested the principals of the company.

  21. “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.”

    On a related note, this is why mandatory minimums violate the 5th amendment. With the stakes that high, you don’t really have due process. You just plead guilty and hope the judge isn’t up for election.

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