Criminal Justice

Senate Bill Would Ban Judges from Using Acquitted Conduct at Sentencing

The little-known but outrageous practice allows federal judges enhance defendants' sentence based on conduct a jury acquitted them of.


The Senate Judiciary Committee voted last Thursday to advance legislation that would ban federal judges from enhancing someone's sentence based on charges they were acquitted of—a little-known practice that has drawn the ire of Supreme Court justices, a bipartisan group of lawmakers in Congress, and criminal justice reformers.

By a vote of 16–6, the Senate Judiciary Committee advanced the Prohibiting Punishment of Acquitted Conduct Act of 2021, which was introduced by Sens. Chuck Grassley (R–Iowa.) and Dick Durbin (D–Ill.). 

"If any American was acquitted of past charges by a jury of their peers, then some sentencing judge down the line shouldn't be able to find them guilty anyway and add to their punishment," Grassley said in a March press release announcing the legislation. "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."

Reason's Mike Riggs once described the use of acquitted conduct at sentencing as "a horrifying bug in the federal criminal justice system." As Grassley noted, it sounds alien to the idea most people have of the American trial system. A federal judge can decide at sentencing to enhance a defendant's sentence using facts not found by the jury and based only on a preponderance of evidence—lower than the "beyond a reasonable doubt" standard required of juries.

For example, Reason recently covered the case of Dickie Lynn, a former Florida Keys drug smuggler who was convicted and sentenced to seven life sentences, thanks to the use of acquitted conduct by the judge and a stiff recommendation from federal prosecutors. Lynn was the only defendant out of the 21 charged in the sprawling drug conspiracy who was sentenced to life in prison. The judge added points to Lynn's score under the federal sentencing guidelines for being the leader of the drug enterprise, which he was acquitted of, and possessing a firearm, which he was also never convicted of.

Grassley and Durbin's legislation is supported by a number of groups across the political spectrum, from Americans for Prosperity and the Faith & Freedom Coalition to the Leadership Conference on Civil and Human Rights.

"The consideration of such conduct in sentencing decisions compounds the trial penalty and can often lead to longer federal sentences, exacerbating mass incarceration and depriving defendants of basic due process," the Leadership Conference on Civil and Human Rights said in a letter supporting the bill.

The only other avenue for opponents of acquitted conduct would be to get a case before the Supreme Court, but the Court has been unwilling to take up the issue directly over the past two decades, despite vocal objections from several justices.

In 2014, Supreme Court Justice Antonin Scalia, joined by the odd couple of Justices Clarence Thomas and Ruth Bader Ginsburg, urged the Court to address judicial fact finding and the conflicts it raises with the Fifth and Sixth Amendments. 

Some newer members of the Supreme  Court have also been critical of the practice in the past. In 2015, Brett Kavanaugh, then a judge for the U.S. Court of Appeals for the D.C. Circuit, wrote that the use of acquitted conduct "seems a dubious infringement of the rights to due process and to a jury trial."