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."

NEXT: The $1.9 Trillion American Recovery Act Could Have Huge Implications for State Tax Policies

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. How about sentencing based on evidence that was never brought up at trial, like what happened to Silk Road’s Ross Ulbricht?

    1. That was ok because the DEA agents on the case were beyond reproach.

      1. Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings DD are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
        on this page…..VISIT HERE

    2. Well, that’s at least a little less bad than ‘it was brought up and rejected’.

      1. Not really. The reason Ulbricht’s entrapment was not brought up was because they knew it would be rejected.

  2. Hang fauci.
    Disband the CIA

    1. That’s a start in the right direction. 16 more IC agencies to go.

  3. Here are 7 at-home jobs that pay at least $100/day. And there’s quite the variety too! Some of these work-at-home jobs are more specialized, others are jobs that anyone can do.HJG They all pay at least $3000/month, but some pay as much as $10,000.

  4. Hey, Reality Winner just got out of prison!

  5. Why the fuck do we need a law to tell judges not to punish people for things they were acquitted for???

    1. There can be semi-legitimate reasons.

      So let’s say a criminal is charged with sexual assault and kidnapping in a federal court. Maybe the jury is convinced that both happened, but aren’t quite sure that the prosecution proved beyond a reasonable doubt that the kidnapping crossed state lines to make it *federal* kidnapping. So they only convict on the sexual assault and acquit on the kidnapping.

      When determining the sentence, the judge goes through a whole list of stuff to determine the offense level, like “If the victim was abducted, increase by 4 levels.” The acquittal for kidnapping, in this case, doesn’t mean that the jury found that the victim was not abducted. So the judge applies the modifier despite the acquittal.

      1. Nope.

        1. Yeah, no.

      2. So, you’re saying that if the judge thinks the acquittal is invalid or undeserved, they can just ignore it and punish them for the crime they weren’t convicted of anyway? And you think this is a legitimate judicial procedure?

        I’m guessing you also support civil asset forfeiture and qualified immunity? God bless ‘merica right?

      3. Acquittal means the jury foreman announced “not guilty” and that it was the result of a unanimous vote in which each and every member of the jury voted “not guilty”.

        Sorry, but I think your remark is completely wrong.

      4. I see where we went wrong – we put a human in authority over other humans. The simple solution is to ban that practice.

  6. Amazing how injustice like this just appears (pulled out of the Judges ass?), can be used for decades and it takes vast effort to stop it.

    Shouldn’t it be hard to start these sorts of things and easy to stop them?

    In a sane world maybe….

  7. Maybe we should start appointing judges who can count to two.

  8. I’d like to know the names of the 6 committee members who voted against this.

    1. Why what are you gonna do about it? Tell a sarcastic joke here?

  9. What a bunch of hypocrisy – this “bill” would prohibit judges from considering – only – acquitted conduct when sentencing, but would not eliminate the authority of judges to consider “uncharged” conduct as a basis for sentencing, so long as the judge found sufficient facts that he/she thought were supported by a “preponderance” of the evidence. Allowing judges to sentence based on their consideration of uncharged conduct already violates the right to trial by jury.

  10. Wow. All these drug busts and confiscations, and drug guys in jail. Have we won the War yet?

  11. Sorta like double jeopardy, with the judge retrying, judging and sentencing all in one. Well, you got away with it, but now that your back for something else, while I’m at it, I’m gonna get ya for that thingy back when..

  12. I am making a good salary from home $1200-$2500/week , which is amazing, under a year back I was jobless in a horrible economy. I thank God every day I was blessed with these instructions and now it’s my duty to pay it forward and share it with Everyone, Here For MORE INFO …. _____ W­­w­­w­­.H­­o­­m­­e­­j­­o­­b­­1­­.c­­o­­m

Please to post comments

Comments are closed.